DK R, (on the application of) v London Borough of Croydon

A local authority applying Schedule 3 to the Nationality, Immigration and Asylum Act 2002 must consider whether the Convention-rights exception applies when a person requests support which would otherwise be available under the Children Act 1989. It cannot adopt a blanket refusal based solely on immigration status.

The legislation does not require a human rights assessment in every case. Such an assessment is required where the circumstances, including significant new evidence bearing on possible rights under articles 4 or 8 of the Convention, mean that the authority cannot lawfully decide whether support is necessary to avoid a breach without undertaking that assessment.

The claimant was an Albanian national who had been accommodated and supported by the defendant as an unaccompanied child. After turning 21 and exhausting his asylum appeal rights, he sought continued care-leaver support, including a personal adviser and pathway plan.

The Council relied on Schedule 3 to the Nationality, Immigration and Asylum Act 2002. Earlier human rights assessments had been followed by further evidence concerning trafficking, exploitation, mental health and a fresh human rights claim. The Council initially refused to reconsider its position, but later agreed to conduct a further assessment. The court had to decide whether a human rights assessment was legally required and postponed the separate challenge under articles 4 and 8 pending its outcome.

1. Ground 1 allowed in substance. The parties’ agreement that the Council should conduct a human rights assessment was approved. Judgment was nevertheless given because the issue was of general public importance and not materially fact-sensitive.
2. Schedule 3 to the Nationality, Immigration and Asylum Act 2002 prohibits specified support to persons in the United Kingdom in breach of immigration laws, but paragraph 3 preserves support necessary to avoid a breach of Convention rights. A local authority considering a request for support under, among other provisions, sections 23CZB or 23CA of the Children Act 1989 must address that exception.
3. The statutory scheme does not require a human rights assessment whenever support is requested. The authority may rely on an earlier assessment where no material change has occurred. It must, however, consider the request and cannot apply a blanket rule that Schedule 3 prevents any consideration of support.
4. On the facts, the Council was required to undertake a further assessment. The claimant had produced substantial new material, including evidence of trafficking, a positive reasonable-grounds decision and expert reports concerning mental health and vulnerability. Those matters raised possible issues under articles 4 and 8 and could not lawfully be disregarded.
5. The court declined to determine Ground 2, concerning the alleged breach of articles 4 and 8 and section 6 of the Human Rights Act 1998, until the assessment was completed. Interim relief was refused because the assessment was imminent and there was no firm basis for relief.