London Borough of Lambeth v Grant

The Court of Appeal allowed the London Borough of Lambeth's appeal against declarations made by Mitting J. The court held that schedule 3 to the Nationality, Immigration and Asylum Act 2002 restricts local authority entitlement to mainstream support for certain classes of persons unlawfully in the United Kingdom, but that paragraph 3 of that schedule permits a local authority to exercise powers (including powers under section 2 of the Local Government Act 2000) insofar as necessary to avoid a breach of Convention rights. The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (Regulation 3(3)) confer a discretionary power to provide temporary accommodation to certain persons with dependent children but do not themselves preclude the council from using other powers to avoid an Article 8 breach. The judge was wrong to treat Regulation 3(3) as the sole means by which Lambeth could lawfully avoid an Article 8 breach; the council may, within its discretion and subject to paragraph 3 of schedule 3, use section 2 powers to fund travel arrangements where necessary to avoid a Convention breach.

Background and parties. The claimant, a Jamaican national unlawfully present in the United Kingdom with three children (one British), sought judicial review after Lambeth resolved to limit support. Lambeth had been providing temporary hotel accommodation pending assessment and the outcome of immigration applications.

Nature of the claim and relief sought. The claimant sought declarations that Lambeth was obliged to continue accommodating the family under the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 until certain events (such as funded travel to Jamaica, cessation of need, or the making of removal directions with non-cooperation) and that section 2 of the Local Government Act 2000 did not authorize funding travel to Jamaica.

Issues for determination.

• Whether schedule 3 to the Nationality, Immigration and Asylum Act 2002 and the Withholding Regulations 2002 prevented Lambeth from funding travel arrangements under section 2 of the Local Government Act 2000;
• whether Regulation 3(3) of the 2002 Regulations required Lambeth to provide accommodation as the only means of avoiding a breach of Article 8;
• the proper scope of local authority discretion where Article 8 rights of a parent and dependent children are engaged.

Procedural posture. The claim succeeded before Mitting J (Administrative Court) who made declarations in the claimant's favour on 17 June 2004. Lambeth appealed to the Court of Appeal.

Court's reasoning and conclusions. The court analysed schedule 3 and the Regulations, acknowledging that schedule 3 excludes certain categories from mainstream support but contains paragraph 3 saving powers necessary to avoid breaches of Convention rights. The Withholding Regulations give a discretionary power to provide accommodation to certain classes but do not authoritatively oust other lawful powers available to a local authority. The judge below had erred by treating Regulation 3(3) as the exclusive route for avoiding Convention breaches; once the council sensibly concluded that accommodation under Regulation 3(3) should be used only as necessary, it was lawful to consider using section 2 of the 2000 Act to fund travel to avoid an Article 8 breach. The court therefore set aside the declarations and dismissed the claimant's claim.

Wider context. The court noted the high threshold for Convention-based interference with immigration control and acknowledged resource and policy considerations relevant to local authorities exercising discretionary powers to protect family life.

Appeal allowed. The Court of Appeal set aside Mitting J's declarations and dismissed the claimant's claim. The court held that schedule 3 to the Nationality, Immigration and Asylum Act 2002 does restrict entitlement to specified statutory support but paragraph 3 allows local authorities to exercise listed powers to the extent necessary to avoid a breach of Convention rights; a local authority may therefore, in the exercise of its discretion and subject to paragraph 3, use section 2 of the Local Government Act 2000 (together with any applicable powers under the Withholding Regulations) to fund travel arrangements where necessary to avoid an Article 8 breach. The judge erred in treating Regulation 3(3) as the sole means of avoiding such a breach and in compelling the council to follow the course the judge prescribed rather than to exercise its lawful discretion having regard to resources and other demands.

On appeal from the Administrative Court (Mitting J, judgment 17 June 2004) where declarations had been made for the claimant. The Court of Appeal ([2004] EWCA Civ 1711) allowed the appeal and dismissed the claimant's claim.