Hines v London Borough of Lambeth

An appeal under section 204 of the Housing Act 1996 is confined to a point of law and is reviewed on ordinary judicial-review principles. EU-law considerations do not, by themselves, require anxious scrutiny or a heightened intensity of review. Under regulation 15A(4A)(c) of the Immigration (European Economic Area) Regulations 2006/1003, the question is whether the child would be unable, as a matter of practicality, to remain in the United Kingdom or another EEA State if the primary carer left. The issue is effective compulsion, not whether remaining with the primary carer would be preferable or in the child’s best interests. Welfare, the impact of separation, quality of life and realistic alternative care remain relevant, but welfare is not paramount.

The appellant, a Jamaican national, was the primary carer of her British-born son. Her permission to remain had expired, while the child’s father, an Ivorian national with a permanent EU residence right, cared for him for about two nights each week. Lambeth’s reviewer decided under section 202 of the Housing Act 1996 that the appellant was ineligible under section 185(2), concluding that the child could remain in the United Kingdom with his father if she left. The county court dismissed her section 204 appeal on 25 June 2013.

The Court of Appeal considered whether the review required more intensive scrutiny and whether the child’s best interests should determine the application of regulation 15A(4A)(c). The central issue was whether the child would be unable to remain in the United Kingdom or the EU if the mother were required to leave.

Lord Justice Vos delivered the judgment of the court. Lord Justices Patten and Sullivan agreed. The appeal was dismissed.

1. Scope of the appeal. An appeal under section 204 of the Housing Act 1996 is an appeal on a point of law arising from the reviewer’s decision. The Court of Appeal had the same powers as the county court. Applying Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 and Edwards v Bairstow [1956] AC 14, the court rejected any requirement for anxious scrutiny or enhanced review. The possible relevance of article 20 TFEU did not alter that approach.
2. The applicable residence test. Regulation 15A(4A)(c) required consideration of whether the child would be unable, as a matter of practicality, to remain in the United Kingdom or another EEA State. Applying Harrison v Secretary of State for the Home Department [2012] EWCA Civ 1736, the relevant question was whether the child would be effectively compelled to leave. A reduction in family life or living standards was insufficient unless the impairment was so serious that residence would no longer be practically possible. That approach was consistent with Ruiz Zambrano v Office National de l’Emploie [2012] QB 265 and Dereci v Bundesministerium fűr Inneres [2012] 1 CMLR 45.
3. Welfare and alternative care. The reviewer had to consider the child’s welfare, the effect of removing the primary carer, the quality and standard of the child’s life, and available alternative care. Welfare was relevant but could not be paramount, since that would replace the statutory practical-inability test. The court declined to prescribe general guidance. It observed that adoption or foster care would not ordinarily be adequate where separation seriously impaired the child’s life, whereas care by another responsible parent would not normally create effective compulsion.
4. Application. The reviewer had adequately evaluated the evidence concerning the father’s ability and willingness to care for the child. The decision was not Wednesbury unreasonable. By the time of the county court appeal the father had become redundant, removing the principal practical obstacle to his caring for the child. Even if the reviewer had erred, relief would therefore not have been appropriate. The approach was consistent with Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2009] UKHL 7.

• Court of Appeal (Civil Division): Dismissed the second appeal and upheld the substance of the reviewer’s decision.
• Clerkenwell and Shoreditch County Court: On 25 June 2013, His Honour Judge John Mitchell dismissed the appellant’s appeal under section 204 of the Housing Act 1996.