Gnezele, R (on the application of) v Leeds City Council & Anor

Where an asylum seeker is destitute and is an expectant or nursing mother, the local authority’s powers and duties under section 21 of the National Assistance Act 1948 must be read with the statutory scheme governing asylum support. Section 21(1A) excludes provision under section 21(1)(a) where the need for care and attention arises solely from destitution. It does not bring section 21(1)(aa) within the local authority’s responsibility where the relevant need arises from destitution rather than pregnancy or nursing. The Secretary of State may provide accommodation under section 4 of the Immigration and Asylum Act 1999, subject to the 2005 Regulations. Where that power exists, section 21(8) further restricts local-authority provision.

The claims concerned two failed asylum seekers who became pregnant, gave birth, and required accommodation and necessities to avoid treatment contrary to Article 3 of the European Convention on Human Rights. Interim orders had required Leeds City Council to provide accommodation under section 21(1) of the National Assistance Act 1948.

The claimants argued that Leeds owed a duty under section 21(1)(a), alternatively that it had a power under section 21(1)(aa) which had to be exercised. Leeds and the Secretary of State argued that accommodation fell within the Secretary of State’s powers under section 4 of the Immigration and Asylum Act 1999. The court was asked to determine the governing allocation of responsibility, although the immediate circumstances giving rise to the interim orders had ceased.

1. The claims were dismissed. The interim orders were discharged. There was no order for costs, and permission to appeal was refused.
2. Section 21(1A) of the National Assistance Act 1948 is concerned with accommodation under section 21(1)(a). A person subject to immigration control cannot obtain such accommodation from a local authority where the need for care and attention has arisen solely from destitution or its physical effects. The provision does not extend to section 21(1)(aa).
3. The needs of expectant and nursing mothers are exclusively catered for by section 21(1)(aa). In these cases, any need for care and attention under section 21(1)(a) arose from destitution, not from pregnancy or nursing. The claimants therefore could not rely on the distinction between being solely destitute and being destitute plus another circumstance.
4. The Secretary of State had power to provide accommodation under section 4 of the Immigration and Asylum Act 1999 and the Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005. The regulation 3 conditions were satisfied because the claimants could not leave the United Kingdom while their physical condition prevented travel, including because airlines would not carry women in the later stages of pregnancy or very young children.
5. While fresh representations were being considered, the Secretary of State could also provide accommodation to avoid a breach of Convention rights under regulation 3(2)(e). The obligation in regulation 6 of the Asylum Support Regulations 2000 to take other available support into account did not prevent the Secretary of State from deciding that she, rather than the local authority, should provide accommodation. Section 21(8) consequently restricted Leeds’s ability to provide it.
6. The observations concerning the effect of Rule 353A of the Immigration Rules and the possible consequences for persons making further submissions were expressly left for another day. They did not arise for decision.