Birmingham City Council v Clue

When a destitute person unlawfully present in the United Kingdom has an outstanding, arguable application for leave to remain on Convention grounds, a local authority applying Schedule 3 to the Nationality, Immigration and Asylum Act 2002 must not withhold assistance if that would require departure and thereby forfeit the application. The authority should assess whether the application is obviously hopeless or abusive, but must not determine its merits or pre-empt the Secretary of State.

In such a case, competing demands on the authority’s budget cannot justify interference under article 8(2). Immigration policies likewise belong to the Secretary of State’s decision, not the authority’s assessment. Private life includes social, cultural and family ties. Requiring children who have spent their formative years in the United Kingdom to leave will prima facie interfere with that right.

A Jamaican mother and her four children were destitute and sought accommodation and support from Birmingham City Council under section 17 of the Children Act 1989. An application for indefinite leave to remain was outstanding. The Council refused continuing support because the family could return to Jamaica without breaching articles 3 or 8 of the Convention, although departure would ordinarily cause the immigration application to be treated as withdrawn.

Charles J quashed the Council’s assessment because it had failed to consider the reasons underlying the Secretary of State’s seven-year residence policy, DP 5/96. The Council appealed. Although the family subsequently received indefinite leave to remain, the Court of Appeal heard the appeal because of its wider importance.

The central issues were how a local authority should apply Schedule 3 to the Nationality, Immigration and Asylum Act 2002 when an arguable Convention-based immigration application remained outstanding, and whether coordinated decision-making with the Secretary of State was required.

1. Appeal dismissed unanimously. The Council’s human-rights assessment was unlawful and had properly been quashed, although Charles J’s reasoning was not upheld.

2. When applying Schedule 3 to the Nationality, Immigration and Asylum Act 2002, a local authority must first determine whether the applicant falls within paragraphs 6 or 7. It must then decide whether, and to what extent, assistance is necessary to avoid a breach of Convention rights. It should investigate alternative sources of support and any practical or legal impediment to return.

3. Where a destitute applicant has an outstanding application for leave to remain which expressly or implicitly raises Convention grounds, the authority should ask whether that application is obviously hopeless or abusive. Save in such cases, it must not assess the application’s merits or refuse assistance where the resulting departure would cause the application to be forfeited. Parliament did not confer on local authorities a general power to pre-empt the Secretary of State’s immigration decision.

4. The authority must ordinarily proceed on the footing that departure will cause an outstanding application for leave to remain to be treated as withdrawn under paragraph 34J of the Immigration Rules HC 395. The Secretary of State’s discretion to consider an application after departure did not alter that practical approach.

5. Where the applicant is destitute, has an outstanding Convention-based application and falls within paragraph 7, the authority cannot justify withholding assistance under article 8(2) by reference to its limited budget or competing demands. That would make the effective determination of an immigration application depend unfairly and arbitrarily on local budgetary priorities. Budgetary considerations may be relevant where no application for leave to remain is outstanding.

6. Immigration policies, including DP 5/96, are relevant to the Secretary of State’s immigration decision but not to the local authority’s separate assistance decision. The judge therefore identified the wrong legal error. Nevertheless, the Council’s assessment was independently defective because it ignored the outstanding, non-abusive application and focused on family life without properly recognising the family’s private-life ties.

7. The Court declined to give advisory opinions on six hypothetical scenarios or grant relief concerning the Secretary of State’s processes. It recorded the measures taken to prioritise locally supported cases and children’s cases.

1. Court of Appeal (Civil Division): Dismissed the Council’s appeal unanimously in [2010] EWCA Civ 460. It upheld the quashing of the assessment, but for reasons different from those of Charles J.

2. Administrative Court: Charles J allowed the claim for judicial review and quashed the Council’s assessment. He held that the Council had failed to consider the reasons underlying DP 5/96 and its seven-year residence presumption. No neutral citation is stated in the judgment.