AW, R (on the application of) v London Borough of Croydon

A failed asylum-seeker who is in the United Kingdom in breach of the immigration laws may be excluded from support under both paragraphs 6 and 7 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. Paragraph 6 is not an exclusive code. Where a person also satisfies section 21 of the National Assistance Act 1948, and support is necessary to avoid a breach of Convention rights, the local authority must exercise its section 21 powers. Section 4 of the Immigration and Asylum Act 1999 serves a different function and does not displace that duty. A purported fresh asylum claim does not automatically require support pending the Secretary of State’s decision. The public body must assess the matter case by case, although only clearly inadequate claims should ordinarily be disregarded.

The court heard four judicial review applications concerning support for failed asylum-seekers. The claimants challenged decisions by Croydon and Hackney concerning support under section 21 of the National Assistance Act 1948, and the interaction between that provision, section 4 of the Immigration and Asylum Act 1999 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002.

The parties agreed that the court should give a preliminary ruling on three issues: the effect of paragraphs 6 and 7 of Schedule 3; responsibility for Convention-rights-compliant support where section 21 criteria are met; and whether purported fresh representations automatically require support pending a decision under Rule 353 of the Immigration Rules.

1. Schedule 3. Paragraph 6 does not make exclusive provision for failed asylum-seekers. Paragraphs 6 and 7 may apply cumulatively. A failed asylum-seeker who is in the United Kingdom in breach of the immigration laws within section 11 of the Nationality, Immigration and Asylum Act 2002 is therefore ineligible for the support identified in paragraph 1, subject to paragraphs 2 and 3. The literal reading creates no contradiction requiring paragraph 7 to be restricted. The distinction also accords with the legislative policy of encouraging prompt asylum claims.
2. Sections 4 and 21. Paragraph 3 of Schedule 3 permits an otherwise excluded power or duty to be exercised only to the extent necessary to avoid a breach of Convention rights. It creates no independent power or duty and does not remove the statutory limits of the relevant provision. Section 4 of the Immigration and Asylum Act 1999 provides basic accommodation for qualifying failed asylum-seekers. Section 21 of the National Assistance Act 1948 addresses the distinct needs of persons requiring care and attention. Where those section 21 criteria are satisfied, the local authority must provide the necessary support; it cannot refuse on the ground that section 4 accommodation might be available.
3. The section 4 and section 21 regimes do not impose overlapping responsibility. In determining destitution for section 4 purposes, the Secretary of State must take account of support available, or reasonably expected to be available, under section 21.
4. Purported fresh claims. Further representations do not automatically trigger continuing support. The Secretary of State alone decides whether they constitute a fresh claim for immigration-status purposes, but a public body deciding whether support is necessary to avoid a Convention breach may consider whether the representations are manifestly unfounded, merely repetitive or not an asylum claim. The assessment must be fact-sensitive and exceptional caution is required before refusing support on that basis.