London Borough of Lambeth v Grant

For a person unlawfully present in the United Kingdom who is not an asylum-seeker, Nationality, Immigration and Asylum Act 2002 Schedule 3 generally excludes support under listed statutory powers, including the well-being power in the Local Government Act 2000. Paragraph 3 nevertheless preserves those powers to the extent necessary to avoid a breach of Convention rights. Regulation 3(3) of the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 confers a discretionary accommodation power, not an independent duty. A local authority may combine that power with its section 2 power to fund travel home, using accommodation only for as long as necessary. Article 8 does not generally require public support or continued residence where family life can be maintained in the person’s country of origin.

The claimant, a Jamaican overstayer, lived in temporary accommodation provided by Lambeth with her three children, one of whom was British. Lambeth proposed funding travel to Jamaica and accommodation only until travel arrangements could be made. Mitting J quashed that decision and declared that accommodation had to continue until specified events, while holding that section 2 of the Local Government Act 2000 did not permit Lambeth to fund travel.

Lambeth appealed. The central issues were whether Regulation 3(3) imposed a continuing accommodation obligation, and whether paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 permitted use of the section 2 power to avoid a breach of Convention rights.

1. Appeal allowed. The Court of Appeal set aside Mitting J’s judgment and dismissed the claim. The decision was agreed by Lord Justice Chadwick and Sir Christopher Staughton.
2. The claimant was unlawfully present in the United Kingdom and was not an asylum-seeker. Paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 therefore excluded her from support under the statutory provisions listed there, including section 2 of the Local Government Act 2000 and section 17 of the Children Act 1989. Regulation 3(3) of the 2002 Regulations nevertheless applied to her because she had dependent children and had not failed to co-operate with removal directions.
3. Regulation 3(3) conferred a power, not a duty, to provide accommodation. The power had no fixed time limit, but it only had to be exercised so far as necessary to avoid a breach of Convention rights. The authority was not compelled to use that power rather than another statutory power capable of achieving the same objective.
4. Paragraph 3 of Schedule 3 preserved the section 2 power to the extent necessary to avoid a breach of Convention rights. The authority could therefore fund travel to Jamaica under section 2 and use Regulation 3(3) to provide accommodation pending implementation of the travel arrangements. The section 2 criteria were capable of being satisfied because the proposed expenditure promoted the social well-being of the area and benefited persons resident or present there. The court found no basis to interfere with that assessment.
5. Article 8 did not require the family to remain in the United Kingdom on public support. Family life could be continued in Jamaica, and a lower standard of living there did not itself establish a Convention breach. An outstanding application or appeal could not create a right to accommodation. Lambeth’s proposed assistance safeguarded the family’s Convention rights, and at present it was required to do no more.

1. Court of Appeal (Civil Division) allowed Lambeth’s appeal, set aside the judgment below and dismissed the claim.
2. Administrative Court, Mitting J, gave judgment for the claimant on 17 June 2004, quashed Lambeth’s decision and made declarations requiring accommodation in specified circumstances. It held that section 2 of the Local Government Act 2000 did not empower Lambeth to fund travel to Jamaica.