Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
Available to signed-in members.
Appeal route
- This judgment [2005] EWHC 2950 (Admin) High Court (Administrative Court)
- Appealed to[2007] EWCA Civ 266Outcomeappeals dismissed; three further appeals dismissed by consent
Key cases cited
14 authorities cited.
- Regina v. Secretary of State for the Home Department (Appellant)ex parte Adam (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC) (Respondent)Regina v. Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent)(Conjoined Appeals) (HTML version) [2005] UKHL 66
- Westminster City Council v National Asylum Support Service [2002] UKHL 38
- R (K) v London Borough of Lambeth [2003] EWCA Civ 1150
- Wahid v London Borough of Tower Hamlets [2002] EWCA Civ 287
- Khana v The Mayor and Burgesses of Southwark LBC (2001) 4 CCLR 267
- R v Wandsworth London Borough Council, Ex p O (Bhikha, Ex parte, O, Ex parte, R v Leicester City Council, Ex parte Bhikha) [2000] 1 WLR 2539
- R v Secretary of State for the Home Department, Ex parte Onibiyo (Onibiyo, Ex parte) [1996] QB 768
- R (Nigatu) v Secretary of State for the Home Department [2004] EWHC 1806
- R (Bakhada) v London Borough of Islington and the Secretary of State for the Home Department [2003] EWHC 3328 (Admin)
- R v Richmond upon Thames London Borough Council, Ex p Watson (R v Harrow London Borough Council, Ex p Cobham, R v Redcar and Cleveland Borough Council, Ex p Armstrong) [2001] QB 370
- R on the application of Batantu v Islington LBC (2001) 4 CCLR 445
- R v Bristol CC ex p. Penfold (1998) 1 CCLR 315
- Raja Waheed Akhtar v Governor of Pentonville Prison [1993] Imm A.R. 424
- Wamba v Secretary of State for the Home Department ASA/05/04/9178
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Cases citing this case
10 later cases · 7 positive · 3 neutral
Most senior citing decisions:
- Birmingham City Council v Clue [2010] EWCA Civ 460 approved
- YA, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 225 considered
- Slough Borough Council v M, R. (on the application of) [2006] EWCA Civ 655 approved
- Mustafa, R (On the Application Of) v Kent County Council [2018] EWHC 2025 (Admin)
- MK & Anor v Secretary of State for the Home Department & Anor [2012] EWHC 1896 (Admin)
- VC & Ors, R (on the application of) v Newcastle City Council [2011] EWHC 2673 (Admin)
- S, R (on the application of) v Coventry City Council [2009] EWHC 2191 (Admin)
- Ahmed, R (on the application of) v Asylum Support Adjudicator & Anor [2008] EWHC 2282 (Admin)
- A, R (on the application of) v West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin)
- Binomugisha v London Borough of Southwark [2006] EWHC 2254 (Admin)
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