AC, R (on the application of) v Birmingham City Council

A local authority deciding whether support is barred by Schedule 3 to the Nationality, Immigration and Asylum Act 2002 must decide whether its proposed course would breach Convention rights. In an Article 8 case involving a child who has lived in the United Kingdom for seven years, the authority must have regard to the reasons underlying the Secretary of State’s seven-year policy and presumption. It is not bound to apply that policy, and it must still make a fact-sensitive decision. A decision which omits those underlying factors is unlawful and must be reconsidered.

The claimant, a Jamaican citizen, sought judicial review of Birmingham City Council’s decision to fund her family’s return to Jamaica but not continuing accommodation and support in the United Kingdom. The children were accepted to be children in need, and three were British citizens. The claimant contended that the council had failed to assess the family’s Article 8 rights because it disregarded the reasoning underlying the Secretary of State’s seven-year policy for children who had lived in the United Kingdom continuously for at least seven years.

The central issue was whether paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 permitted the council to exclude those considerations when deciding whether further support was necessary to avoid a breach of Convention rights.

1. Application allowed. The council’s decision was set aside and the matter was remitted for reconsideration.
2. Paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 makes the local authority the decision-maker on whether the proposed exercise or non-exercise of its powers would breach Convention rights. If a breach would result, the statutory restriction does not apply to the extent necessary to avoid it.
3. The council was not bound by the Secretary of State’s seven-year policy. Nevertheless, when carrying out the Article 8 proportionality assessment, it had to consider the reasons underlying the policy and presumption. Those reasons included the strength of the ties formed by a child who had lived in the United Kingdom for seven years, and the consequent possibility that removal would be disproportionate.
4. The requirement remained fact-sensitive. The council could reach its own decision, and a family’s period of residence did not automatically establish a Convention right to remain or a right to accommodation. But the council could not lawfully omit the underlying seven-year considerations merely because its own functions and budget differed from those of the Secretary of State.
5. The court left open whether the council could rely on additional considerations concerning allocation of its resources in the Article 8 balancing exercise. If it wished to do so, that issue had to be particularised and supported by relevant factual material on reconsideration.
6. The claimant was awarded her costs since the permission hearing, subject to assessment if not agreed. Time for any application to renew permission to appeal was extended to 21 days from receipt of the approved transcript. An expedited transcript was ordered, but not at public expense.

First-instance judicial review proceedings. The judgment records that permission was granted by Blake J on 15 September 2008. The council’s decision was set aside and remitted for reconsideration.