KA, R (on the application of) v Essex County Council

Article 8 includes procedural protection which must be fair, effective and capable of safeguarding substantive Convention rights. Under paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, a local authority must consider whether withdrawing support under the Children Act 1989 would breach that protection. Where a person has a substantive Convention claim and removal would deprive them of a statutory appeal, support should generally continue unless the claim is obviously hopeless or abusive. The right to appeal against removal directions remains relevant after leave to remain has been refused and before removal directions are issued. Judicial review does not necessarily provide an equivalent safeguard to an appeal on the merits.

The claimant, a Nigerian citizen unlawfully present in the United Kingdom, sought judicial review of Essex County Council’s decision to withdraw accommodation and support provided under the Children Act 1989 to her and her family. Their applications for leave to remain had been refused, but no removal directions had been issued. The family maintained that withdrawal would compel their return to Nigeria and deprive them of the opportunity to appeal against a future removal decision on Convention grounds. The central issue was whether the local authority had to preserve that potential procedural safeguard under article 8 and paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002.

1. The application was allowed and the decision of 5 July 2012 was quashed.

2. Article 8 protects family life and private life and also incorporates procedural protection which is fair and effective and affords due respect to the protected interests. Paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 therefore required the defendant to consider whether support under the Children Act 1989 was necessary to avoid a breach of that procedural protection.

3. The assessment was fact-specific. Where there is an outstanding application or appeal, a local authority should not generally withdraw support if doing so would prevent the claimant pursuing an arguable Convention claim. The relevant exception is an application or appeal which is obviously hopeless or abusive.

4. The statutory right of appeal against removal directions remained relevant after refusal of leave to remain and before removal directions were issued. Where the claimant had a substantive Convention claim which could found such an appeal, the prospective right existed as part of the Convention protection even though it had not yet been activated.

5. Judicial review was not a complete answer. An appeal to the Immigration Tribunal involved reconsideration of the Convention claim, rather than merely review of the legality of the decision. The defendant’s assessment did not adequately consider that protection, and did not find that the prospective appeal or further application was obviously hopeless or abusive. Withdrawal of support would effectively compel return to Nigeria and forfeit the procedural right of appeal.

6. The result did not create an unrestricted entitlement to support. The question remained dependent on the particular facts, including whether there was a substantive Convention issue and whether the claim was obviously hopeless or abusive.