M, R (on the application of) v Islington & Anor

A local authority’s power under regulation 3(3) of the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 to accommodate an unlawfully present adult caring for a child is a new, freestanding power. It is ordinarily confined by the statutory purpose and guidance to temporary accommodation, usually pending departure and for a short period. It does not generally require indefinite accommodation until removal directions are issued.

A local authority may instead use its power under section 17 of the Children Act 1989 to support a child and an adult family member where necessary to avoid Convention breaches or to safeguard and promote the child’s welfare. Any decision to facilitate relocation must properly assess the child’s relationship with every person having parental responsibility and the likely living conditions abroad.

The claimant, a Guyanese national unlawfully present in the United Kingdom, lived with her British child in council accommodation. Islington refused continuing support and offered to fund travel for the claimant and child to Guyana, with temporary accommodation for 21 days.

The claimant challenged the decision under the Nationality, Immigration and Asylum Act 2002, the 2002 Regulations, section 17 of the Children Act 1989, and Articles 3 and 8 of the Convention. The central issues were the scope of regulation 3(3), the effect of guidance, and whether Islington’s assessment of the child’s welfare, family relationships and circumstances in Guyana was lawful.

1. Regulation 3(3). The power to accommodate an unlawfully present person with a dependent child is a new, freestanding power created by the Regulations. It is not an existing social-services power preserved from the prohibition in Schedule 3 to the Nationality, Immigration and Asylum Act 2002.
2. The power must be interpreted and exercised in light of the statutory scheme, the description of the accommodation as temporary, and the Guidance. It would seldom be lawful to provide accommodation indefinitely, particularly where removal directions were not expected shortly. Islington was entitled to limit its offer under regulation 3(3) to 21 days, subject to a short extension.
3. The duty to have regard to guidance permits departure where there is good reason, but does not permit a substantially different course without justification. The Guidance did not materially misstate regulation 3(3).
4. Section 17(3) of the Children Act 1989 permits provision for an adult member of a child’s family. A local authority may offer travel tickets to facilitate voluntary departure; this does not usurp the Secretary of State’s exclusive power to compel removal. The existence of regulation 3(3) did not make use of section 17 unnecessary, because indefinite repeated use of regulation 3(3) would generally be unlawful.
5. Islington’s decision to offer tickets was unlawful. It failed adequately to consider the child’s relationship with the husband, who had parental responsibility and had begun contact with the child. A local authority should generally obtain the views of each person with parental responsibility before deciding to facilitate a child’s move abroad, unless that person has clearly and permanently left the child’s life.
6. The material about accommodation, employment, family support and childcare in Guyana was insufficient to justify the conclusion that the claimant and child could live adequately there or that relocation would safeguard and promote the child’s welfare or avoid a Convention breach.
7. The January and March decisions were quashed. Islington was required to reconsider the exercise of its section 17 powers. There was no order as to costs, save that the publicly funded claimant’s costs were subject to detailed assessment. Permission to appeal was refused to both parties.

First-instance judicial review. The judgment records no earlier merits decision requiring appellate review.