M v London Borough of Islington & Anor

A local authority may accommodate an unlawfully present adult who has a dependent child and has not failed to co-operate with removal directions. The power under regulation 3(3) is not ordinarily limited to ten days. The statutory guidance permits longer accommodation where the Home Office has made no travel arrangements.

The power is not a duty. Its lawful exercise nevertheless requires consideration of the Convention rights of the parent, child and other affected family members. Under Schedule 3, support otherwise excluded may be provided to the extent necessary to avoid a breach of any person’s Convention rights.

The appellant was a Guyanese national who remained unlawfully in the United Kingdom while pursuing an immigration appeal. She cared for her British-citizen child and had no means of supporting or accommodating either of them. The London Borough of Islington initially offered tickets to Guyana but warned that continued destitution could create a real prospect of the child entering care.

Wilson J quashed that decision because Islington’s assessment had inadequately considered the child’s welfare and the family’s rights under article 8. He remitted the matter for reconsideration but concluded that the applicable guidance restricted accommodation under regulation 3(3) to a short period.

The central issue on appeal was whether Schedule 3 to the Nationality, Immigration and Asylum Act 2002 and the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 empowered Islington to accommodate the family for longer while removal directions remained outstanding.

1. Appeal allowed. By a majority, Waller and Maurice Kay LJJ held that regulation 3(3) empowered Islington to accommodate an unlawfully present person who had a dependent child and had not failed to co-operate with removal directions. The power could continue while Home Office removal arrangements remained outstanding. It was not confined invariably to the short periods identified in paragraph 32 of the Secretary of State’s guidance.

2. The guidance stated a preference that accommodation for persons returning to non-EEA countries should not exceed ten days. That language did not impose an inflexible temporal limit. The preference had to be read with the stated purpose of providing accommodation while a person awaited removal directions. Where no travel arrangements had been made, the local authority could conclude that accommodation for a substantially longer period was appropriate.

3. The power to provide accommodation was not a duty. The authority had to reconsider whether to exercise it. Its Convention obligations were material and might, in practical terms, leave little choice but to provide accommodation.

4. Schedule 3 paragraph 1(1)(g) withdrew the relevant Children Act 1989 powers where assistance to a child was delivered through assistance to an ineligible adult. Paragraph 3 nevertheless preserved the exercise of a power or duty to the extent necessary to avoid a breach of any person’s Convention rights. Those persons could include the child, the mother and the father. The necessity condition required an objective assessment rather than review solely on conventional irrationality grounds.

5. Travel arrangements for unlawfully present persons remained the responsibility of the Home Office. Regulation 3 gave local authorities no corresponding travel-arrangement power for that class. Any reconsideration had to respect the respective immigration and welfare responsibilities of the Secretary of State and the local authority.

6. Buxton LJ dissented on the duration of the regulation 3(3) power. He considered that the guidance restricted accommodation to a very short period, with the consequence that paragraph 3 of Schedule 3 would restore Children Act 1989 powers where necessary to prevent a Convention breach. All members of the court agreed that the family’s Convention rights required careful consideration.

1. Court of Appeal (Civil Division): By a majority, allowed the appeal and declared that Islington had power to provide accommodation under Schedule 3 pending the appellant’s failure to comply with removal directions.
2. High Court, Administrative Court: Wilson J quashed Islington’s decision to offer travel tickets because its assessment inadequately considered the child’s circumstances and the family’s Convention rights. He remitted the matter for reconsideration but treated accommodation under regulation 3(3) as restricted to a short period.