Binomugisha v London Borough of Southwark

A local authority deciding whether immigration-related restrictions prevent support must distinguish the merits of an outstanding human-rights application from the substantially higher threshold of whether that application is manifestly unfounded. Where an outstanding Article 8 application alleges that return would seriously affect private life or mental health, the authority should assume that the application will fail only if it is manifestly unfounded. It may then assess whether withdrawal of support would breach Article 3. A wrong approach is not cured unless an adverse decision would inevitably follow lawful reconsideration. Duties to provide a personal adviser and review a pathway plan may continue even where material support or assistance is barred.

The claimant, a former relevant child supported by Southwark under the Children Act 1989, challenged the council’s decision to terminate support after he became an adult. He had an outstanding application to the Home Office asserting that removal to Uganda would breach Article 8 because of its effects on his mental health and private life.

Southwark assessed the merits of that Article 8 case and concluded that return would not breach his rights. It therefore decided that support was unnecessary and unavailable. The claimant sought judicial review, also arguing that the council remained obliged to provide a personal adviser and review his pathway plan.

1. Decision quashed. Southwark had asked whether removal to Uganda would breach Article 8, rather than whether the outstanding Article 8 application was manifestly unfounded. That was a material error of law.
2. The effect of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 is that local authorities must assess certain immigration-related matters. However, immigration authorities possess the primary expertise and responsibility for difficult judgments concerning leave to remain. Following R (Kimani) v Lambeth LBC and R (AW) v Croydon; R (A, D & Y) v Hackney, a local authority should proceed on the basis that an outstanding application will fail only where it is manifestly unfounded. It is insufficient that the authority considers that the application will fail or lacks merit.
3. The high threshold for an Article 8 claim based on removal’s effect on mental health, described in R (Razgar) v Secretary of State for the Home Department, did not make refusal inevitable. The evidence left unresolved questions concerning the claimant’s psychotic episode, treatment, physical health, available treatment in Uganda, and the development of his private life in the United Kingdom. The court therefore would not refuse relief on the basis that lawful reconsideration could have only one outcome.
4. Southwark remained entitled to investigate whether the claimant could avoid destitution and degradation by returning to Uganda. If the Article 8 application was not manifestly unfounded, it had to consider whether withdrawal of support would breach Article 3 and whether alternative support was realistically available.
5. The claimant remained entitled to a personal adviser and reviews of his pathway plan under section 23C of the Children Act 1989. Those functions were a form of advice rather than barred material support or assistance. Their scope could be reduced if material support was lawfully unavailable, but the duties did not cease.

This was a first-instance judicial review. The claim was lodged on 28 February 2006. Interim relief was granted on 8 March 2006 and permission to apply for judicial review was granted on 16 March 2006.