EAT, R (on the application of) v London Borough of Newham

For the prohibition in section 122(5) of the Immigration and Asylum Act 1999 to apply, a local authority must have reasonable grounds for believing that the person has made a claim for asylum within section 94. The relevant question is what the applicant actually asserted in the application, not merely how the Secretary of State later characterised or considered it. A claim for asylum requires an assertion of a right to asylum based on the Refugee Convention or article 3 of the ECHR. Where an application expressly relies on article 8, raises medical circumstances in support of that case, and does not expressly or impliedly assert an article 3 risk, consideration of article 3 by the UKBA does not itself establish that an article 3 claim was made.

The claimant, a young child with sickle cell anaemia, sought judicial review of the London Borough of Newham’s decision to withdraw accommodation and support provided under section 17 of the Children Act 1989. The claimant and her mother were homeless, and the claimant’s medical condition required stable accommodation and refrigerated medication.

The mother had applied for indefinite leave to remain outside the Immigration Rules. Her solicitors’ application relied expressly on article 8 and medical and family circumstances, but did not mention article 3. The UKBA nevertheless considered the application under article 3 and rejected it. Newham argued that this meant the mother had made a claim for asylum under section 94 of the Immigration and Asylum Act 1999, engaging the prohibition in section 122(5). The central issue was whether the application amounted to a claim for asylum based on article 3.

1. The claim succeeded. Newham was not prohibited from providing support and accommodation under section 17 of the Children Act 1989 by section 122(5) of the Immigration and Asylum Act 1999.
2. Section 122(5)(b) requires the local authority to hold a belief, based on objectively reasonable grounds, that the relevant conditions exist. The provision allows a margin of error because local authorities may have to make judgmental decisions in unclear circumstances while anticipating a decision by the Secretary of State.
3. The expression “claim for asylum” incorporates both the object claimed, namely asylum, and the grounds on which it is claimed. The applicant must therefore have asserted a right to asylum based on the Refugee Convention or article 3 of the ECHR. The local authority must focus on what was asserted in the relevant application. It cannot treat the Secretary of State’s later consideration of an issue as conclusive of what the applicant claimed.
4. Read fairly, the mother’s application did not expressly or impliedly make an article 3 claim. It expressly addressed article 8, was drafted by experienced immigration solicitors, and relied on medical circumstances together with family and private-life considerations. The UKBA refusal letter stated only that the application had been considered under article 3. Its comprehensive consideration of article 3 did not mean that an article 3 claim had been made.
5. Although Newham considered the application after receiving it, its conclusion that an article 3 claim had been made went beyond the permissible margin of error because it failed sufficiently to focus on the contents of the application.