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

The claim challenged Islington’s decisions of 20 January 2003 and 27 March 2003 refusing to provide ongoing support and offering instead short-term accommodation and/or funded one-way travel to Guyana. The court considered the effect of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (in particular Regulation 3(3) and Regulation 4) and guidance made under the Schedule, together with the local authority powers under section 17 of the Children Act 1989 and Convention rights under Article 8.

The court held that Regulation 3(3) and the Guidance should be read purposively and that, in light of their purpose and the Guidance to which local authorities must have regard, it would seldom be lawful for a local authority to provide accommodation under Regulation 3(3) on an indefinite or long-term basis where removal directions were not imminent. Islington’s decision to limit accommodation under the Regulations to 21 days (subject to short extension) was not shown to be unlawful.

However the decision to offer funded one-way travel under section 17 was quashed because the assessment underlying it was materially flawed. First, Islington failed adequately to consider the effect of removal on the child’s relationship with the non-resident father (who shared parental responsibility), and did not seek his views. Second, Islington proceeded on inadequate factual material about the likely accommodation, care and means of support for the claimant and the child in Guyana. For those reasons the section 17 decision was irrational and must be reconsidered.

Background and parties: The claimant, a Guyanese national who had remained in the United Kingdom beyond a visitor visa, lived with her British child in a council flat in Islington. The child’s father had indefinite leave to remain but the marriage had broken down. Islington had assessed the child’s needs under the Children Act 1989 and, after social work enquiries, refused ongoing monetary support but offered short-term accommodation and funding of one-way travel to Guyana.

Nature of the claim: Judicial review of Islington’s letter dated 27 March 2003 (and earlier 20 January 2003 decision) challenging the lawfulness of Islington’s refusal to provide longer-term accommodation under the Regulations 2002 and its alternative offer to fund return travel under section 17 of the Children Act 1989. The claimant alleged misapplication of the Regulations, failure to protect Convention rights (Article 8 and Article 3), and an inadequate welfare assessment.

Legal framework: The judgment analyses Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (implemented by s.54), which identifies classes ineligible for local authority support (including unlawfully present persons) but creates limited exceptions and empowers the Secretary of State to make Regulations (paras 8–10) for travel assistance and temporary accommodation. The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 were considered, together with guidance issued under paragraph 11(e) of the Schedule. The court also considered the local authority power under section 17(3) Children Act 1989 to provide for a child and for an adult member of the family, and the relevance of Article 8 ECHR.

Issues framed: (i) the proper construction and permissible ambit of Regulation 3(3) and the Guidance (whether Regulation 3(3) allowed long-term accommodation pending removal directions); (ii) whether Islington was obliged to provide accommodation under the Regulations instead of exercising section 17 powers; (iii) whether Islington’s section 17 decision to offer return travel was lawful, rational and compatible with Article 8; and (iv) whether Islington’s welfare assessment was adequate, including whether it had properly considered the child’s relationship with the father and the factual circumstances in Guyana.

Reasoning and conclusion: The court applied a purposive interpretation. It concluded that, given the statutory purpose of Schedule 3 (to permit withholding or withdrawal of support) and the Guidance emphasising temporary, short-term accommodation pending departure, it would seldom be lawful for local authorities to use Regulation 3(3) to provide long-term accommodation where removal directions were not imminent. The Guidance to which authorities must have regard was held to be of strong weight. The court nonetheless rejected the claimant’s submission that Islington was required to provide accommodation under Regulation 3(3) on an indefinite basis.

Turning to the section 17 offer of funded travel, the court found two fatal defects in Islington’s assessment: it failed rationally to address the effect of removal on the child’s relationship with the non-resident father (who had parental responsibility and contact arrangements); and it proceeded on insufficient factual material about likely accommodation and support for the family in Guyana. For those reasons the section 17 decision was irrational and unlawful and was quashed. The court ordered Islington to reconsider its decisions. Permission to appeal was refused and there was no order as to costs (claimant’s publicly funded costs to be subject to detailed assessment).

At first instance the court quashed Islington’s decisions dated 20 January 2003 and 27 March 2003. The court held that (a) Regulation 3(3) of the 2002 Regulations and the Secretary of State’s Guidance must be read purposively and, in context, it would seldom be lawful for a local authority to provide open-ended accommodation under Regulation 3(3) where removal directions were not imminent; and (b) Islington’s decision to offer funded travel under section 17 was unlawful because its assessment was irrational: it had failed properly to consider the child’s relationship with the non-resident father (and to seek his views) and had proceeded on inadequate factual material about accommodation and support in Guyana. The section 17 decision was quashed and Islington must reconsider its position. Permission to appeal was refused. There was no order as to costs (claimant’s publicly funded costs to be assessed).