R (K) v London Borough of Lambeth

A statutory definition of a dependant as a person’s spouse bears its natural meaning. A court may imply a proviso only where that is necessary to give effect to the draftsman’s clear intention.

Under paragraph 3 of Schedule 3 to the Nationality Immigration and Asylum Act 2002, support is not necessary to avoid a breach of Convention rights where a foreign national can freely return with her child to a country in which they can subsist. Permission to remain while pursuing an immigration appeal does not confer a right to public support. Nor does the Convention oblige the state to support a foreign national who can return home without violating her rights.

A Kenyan national was temporarily admitted to the United Kingdom and unsuccessfully claimed asylum. After marrying an Irish national, she applied for a right of residence under the Immigration (European Economic Area) Regulations 2000. The Secretary of State refused her application because he considered the marriage one of convenience. Her appeal against that decision remained outstanding.

Lambeth initially provided emergency support but withdrew it after section 54 and Schedule 3 to the Nationality Immigration and Asylum Act 2002 came into force. Silber J dismissed her application for judicial review. The issues were whether she was her husband’s “spouse”, and therefore his dependant, for Schedule 3 purposes, and whether support remained necessary to avoid breaches of her Convention rights.

1. Appeal dismissed and permission to appeal on the first issue refused. Regulation 2(2)(a) of the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 defined a dependant as a person who was the relevant person’s spouse. “Spouse” bore its natural meaning of a married person. It included a party to a marriage which the Secretary of State had determined to be one of convenience while an appeal against that determination remained pending.

2. Implying a proviso into a statutory provision could be legitimate, if at all, only where necessary to give effect to the draftsman’s clear intention. No such intention was established. Schedule 3 was intended to discourage specified classes of people, who could reasonably look to another country for their livelihood, from remaining in the United Kingdom and consuming its resources. Protection from removal pending an appeal operated as a stay of removal and conferred no entitlement to benefits or support.

3. Paragraph 3 of Schedule 3 did not empower Lambeth to provide support. Neither article 3 nor article 8 required the state to support a foreign national who had no leave to enter or remain and could freely return with her child to a country in which they could subsist. Requiring her to return pending determination of the appeal would not breach article 8. Strasbourg jurisprudence recognised the state’s right to control the entry of non-nationals: Abdulaziz, Cabales and Balkandani v United Kingdom 7 EHRR 471 applied.

4. The position of a deprived asylum seeker, who might be unable to return safely to the country of origin, was materially different. R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 therefore assisted Lambeth. R (J) v Enfield LBC [2002] EWHC 432 (Admin) was distinguishable because return to Ghana had not been shown to be a viable option there.

5. Applying R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, the appellant had also failed to establish that withdrawal of support would reduce her to article 3 degradation or cause her son to be taken into care. Article 6 was conceded not to apply, and the court declined to permit a new article 14 argument.

1. Court of Appeal (Civil Division): Dismissed the appeal, refused permission to appeal on the first issue, and upheld Silber J’s conclusion that Lambeth could not provide support under paragraph 3 of Schedule 3 to the Nationality Immigration and Asylum Act 2002.
2. Administrative Court: Silber J dismissed the application for judicial review on 16 April 2003. He granted permission to appeal on the Convention-rights issue but refused permission on the construction of “spouse”.