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 paragraph 7 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, even if paragraph 6 also concerns failed asylum-seekers. The provisions operate cumulatively.

Where a person satisfies section 21 of the National Assistance Act 1948 and support is necessary to avoid a Convention breach, the local authority must act under section 21. 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 interim support. The responsible public body must assess the representations case by case, although only clear cases justify treating them as manifestly inadequate.

The court heard four linked judicial review applications concerning support for failed asylum-seekers. AW, A and Y had applied to local authorities under section 21 of the National Assistance Act 1948; D’s immigration status was disputed but likely involved temporary admission. The applications were confined to the effect of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 and related Convention rights.

The parties agreed that the court should give a preliminary ruling on three questions: whether paragraph 7 excluded failed asylum-seekers in breach of the immigration laws; whether Convention-compliant support was the responsibility of the local authority under section 21 or the Secretary of State under section 4 of the Immigration and Asylum Act 1999; and whether purported fresh asylum representations automatically required support pending a decision under rule 353 of the Immigration Rules.

1. Issue 1. Paragraphs 6 and 7 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 are cumulative. Paragraph 6 does not make exclusive provision for failed asylum-seekers. A person who is no longer an asylum-seeker and is in the United Kingdom in breach of the immigration laws falls within paragraph 7, subject to paragraphs 2 and 3.
2. The maxim generalibus specialia derogant did not justify reading words into paragraph 7(b). Paragraph 6 and paragraph 7 address different immigration situations. The distinction is consistent with the legislative policy of encouraging asylum claims at the port of entry. Failure to comply with removal directions does not necessarily breach conditions of temporary admission or bring a person within paragraph 7.
3. Issue 2. Paragraph 3 of Schedule 3 preserves the exercise of an otherwise available power or duty only to the extent necessary to avoid a breach of Convention rights. It creates no independent power or duty. Where a failed asylum-seeker satisfies sections 21(1) and 21(1A) of the National Assistance Act 1948, the local authority must provide the necessary support under section 21. Section 4(2) of the Immigration and Asylum Act 1999 is a distinct, targeted regime for hard-case accommodation and does not cater for care needs or displace section 21.
4. In deciding whether a failed asylum-seeker is destitute for section 4 purposes, the Secretary of State must take account of support available, or reasonably expected to be available, under section 21. The two regimes therefore do not create overlapping responsibility in this respect.
5. Issue 3. A purported fresh claim does not automatically restore asylum-seeker status or require support. Pending the Secretary of State’s decision, the public body may consider whether the representations are manifestly unfounded, merely repeat previously rejected grounds, or disclose no asylum claim. The assessment must be fact-specific, cautious and confined to clear cases. The preliminary issues were determined accordingly; the underlying applications required reconsideration in light of the ruling.