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

A failed asylum-seeker who needs care and attention and satisfies section 21(1) and (1A) of the National Assistance Act 1948 must look first to the local authority for support. The Secretary of State’s power under section 4 of the Immigration and Asylum Act 1999 is residual in such a case.

In determining destitution for section 4, the Secretary of State must take account of support available under section 21. The statutory definition of destitution cannot sensibly be separated from the provisions identifying matters relevant to its application. Schedule 3 to the Nationality, Immigration and Asylum Act 2002 restricts support to what is necessary to avoid a breach of Convention rights. It does not alter which public authority bears responsibility.

Three failed asylum-seekers sought support from Croydon or Hackney under section 21 of the National Assistance Act 1948. A composite Administrative Court judgment decided three preliminary issues concerning their eligibility. Following R (M) v Slough Borough Council [2006] EWCA Civ 655, three appeals on the first issue were dismissed by consent.

The two live appeals concerned Lloyd Jones J’s answer to the second issue. He held that, where a failed asylum-seeker satisfied section 21(1) and (1A) and support was necessary to avoid a breach of Convention rights under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, the local authority rather than the Secretary of State had to provide it. Croydon and Hackney appealed. The central question was whether responsibility lay under section 21 of the 1948 Act or section 4 of the Immigration and Asylum Act 1999.

1. The appeals were dismissed. A failed asylum-seeker who is both destitute and in need of care and attention within section 21(1)(a) of the National Assistance Act 1948 must look first to the local authority. The Secretary of State is not responsible under section 4 of the Immigration and Asylum Act 1999 where section 21 support is available.

2. The criteria governing section 4 incorporate the statutory scheme for determining destitution. Regulation 3 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 requires the applicant to appear destitute. Regulation 2 adopts the meaning in section 95(3) of the 1999 Act. Sections 95(5) and (7), together with regulation 6(4) of the Asylum Support Regulations 2000, require account to be taken of other available support. That includes section 21 support. A person entitled to it therefore cannot be treated as destitute for section 4.

3. Sections 95(5) and (7) cannot sensibly be divorced from section 95(3). They provide the lexicon by which the statutory definition of destitution is applied, whether section 95(3) operates directly for section 95 or supplies criteria for section 4.

4. R (Westminster City Council) v NASS [2002] UKHL 38 established the analogous division for asylum-seekers. Section 21(1A) removed only the able-bodied destitute from local-authority responsibility. Those whose need for care and attention arose from infirmity as well as destitution remained within section 21. The same allocation applies to failed asylum-seekers.

5. Schedule 3 to the Nationality, Immigration and Asylum Act 2002 determines whether support may be given and limits it to the extent necessary to avoid a breach of Convention rights. It does not determine whether the local authority or the Secretary of State must provide that support.

6. Section 4 provides bare accommodation and does not require accommodation suited to a person needing care and attention. Section 21, by contrast, includes connected services and accommodation suited to such needs. Neither section 21(8), regulation 3(2)(b) of the 2005 Regulations nor section 99 of the 1999 Act displaced this statutory allocation.

1. Court of Appeal (Civil Division): The two live appeals were dismissed. Three appeals concerning a separate preliminary issue were dismissed by consent.

2. Administrative Court: Lloyd Jones J gave a composite judgment on 16 December 2005. On the surviving preliminary issue, he held that a failed asylum-seeker satisfying section 21(1) and (1A) of the National Assistance Act 1948, whose support was necessary to avoid a breach of Convention rights, had to be supported by the local authority rather than the Secretary of State. No neutral citation was stated.