Asylum Support Court Cases

Asylum Support Court Cases

Ibrahim Mohammed Tahir Salih and Benham Rahmani Claimants and The Secretary of State for the Home Department Hearing dates: 15, 16 July 2003

"This judgment should be reported on the WWW

These cases are concerned with the so-called “hard cases” support for failed asylum seekers. The Claimants seek judicial review of the practice of the Home Secretary not to inform failed asylum seekers who may be eligible for hard cases support of the availability of such support, and of his delay in providing such support to those who qualify for it.

On the basis of my judgment, the Home Secretary will have to reconsider his policy

NASS has failed to explain why the delays that occurred in the present cases took place.

The scrutiny of the court is limited to reviewing whether the practice of NASS in administering the scheme is rational and consistent with legal principle. In the respects I have referred to above, it is not."

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The Queen on the application of Helen Berhe, Yorsmame Kidane, Wahdat Munir, Albertina Ncube (claimant) v The London Borough of Hillingdon (defendant) - Secretary of State for Education and Skills (interested party)

"Their complaint is that the defendant owed and still owes duties to them under the Children (Leaving Care) Act 2000 ("the 2000 Act") and has failed to discharge those duties.

At the heart of the Council's case is its contention that these four claimants were not provided with accommodation under section 20 of the 1989 Act, (The Children Act 1989) they were merely provided with services under section 17 of the Act.

In my judgment, the defendant's argument is mere sophistry, based upon a distinction without a difference.

In these circumstances, it does not do any violence to the statutory language, to the policy underlying Part III of the Act or to elementary common sense (our emphasis) to say that the claimants were indeed being "looked after" by the defendant.

For these reasons, all four applications succeed...

The claimant is in priority need within the meaning of Article 4 of the Homelessness (Priority Need for Accommodation) (England) Order 2002

Reference: Guidance on accommodating Children in Need and Homelessness Guide

Note: Sophistry theasurus of: 'delusion' - 'fallacious reasoning' - 'fallacy' - 'irrationality'

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B, R (on the application of) v London Borough of Merton [2003] EWHC 1689 (Admin) (14 July 2003)

"However, on 13 February 2003 the Defendant determined that he was aged at least 18.

But, if he is under 18, and is in need, he is owed a duty under Part III of the Children Act 1989 by the local authority in whose area he is, including a duty under section 20 of that Act, to provide him with accommodation.

In these proceedings the Claimant seeks the judicial review of that determination.

The Defendant must reconsider the age of the Claimant."

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Mani v The London Borough of Lambeth (9th July 2003)

"Does a local authority have a duty to provide residential accommodation for a destitute asylum seeker who suffers a disability which, of itself, gives rise to a need for care and attention which falls short of calling for the provision of residential accommodation?"

If, as I would hold, the liability falls on Lambeth, then no doctrine of functus officio nor any form of public law estoppel can possibly operate to transfer that liability to NASS. On the contrary, it would quite simply be unlawful for NASS to continue to make provision for accommodation when on a strict view of the law they have not merely no duty but no power to do so."

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Relating to:

R. (on the application of MANI) v LONDON BOROUGH OF LAMBETH - LONDON BOROUGH OF ENFIELD EWHC 735 (Admin) (18 April 2002)

"Does a local authority have a duty to provide residential accommodation for a destitute asylum-seeker who suffers a disability"

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Anufrijeva, R (on the application of) v. Secretary of State for the Home Department & Anor [2003] UKHL 36 (26 June 2003)

"I consider that section 11(1) of the 1996 Act did not empower the Secretary of State to make regulations which have the effect that an asylum seeker can be deprived of that status for income support purposes without notification."

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The Queen on the Application of 'Q' and Others and the SSHD (18th March 2003)

"We dismiss these appeals because Collins J was correct. . . "

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Relating to:

R (Q) v Secretary of State for the Home Department (19th February 2003)

"I am satisfied that there will normally be a real risk that to leave someone destitute will violate Articles 3 (Prohibition of Torture) and 8.1 (Right to respect for private and family life) I am not persuaded that charity offers a real chance of providing support. It would be surprising if the standards of the European Convention on Human Rights were below those believed 200 years ago to be applicable as the law of humanity . . ."

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Al-Ameri v Kensington & Chelsea [2003] EWCA Civ 235 (28 February 2003)

"Is residence in a district in accommodation provided to a destitute asylum seeker under legislation which requires the provider to ignore any preference of the asylum seeker as to where he resides capable of being regarded as residence (in that district) of the asylum seeker's own choice?"

"Alternatively, it might have been thought that the best hope of integrating him into the community is to allow him some degree of choice in deciding where to begin; and that, accordingly, having become eligible for assistance for the first time, he should be able to start with a clean sheet."

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T & Anor, R (on the application of) v Secretary of State for Health & Anor

"But, my Lord, we were arguing that there was unjustified discrimination as between children on income support and the babies of asylum seekers, and that is simply the terms of the Welfare Food Regulations, that you are entitled to free milk up to the age of five."

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Judgments - Westminster City Council v National Asylum Support Service - 17th October 2002 [2002] UKHL 38

"I agree with it and for the reasons that he gives I too would dismiss the appeal."This confirms that the person referred to in the case is entitled to local authority assistance under the Section 21 of the National Assistance Act (1948) This was because she required 'Care and Attention' that did not arise solely because of destitution.

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2- WESTMINSTER CITY COUNCIL v. NATIONAL ASYLUM SUPPORT SERVICE [2001] EW Court of Appeal Civ 512 (10th April, 2001)

" The critical question is whether the responsibility for housing and supporting this category of asylum-seeker now falls upon the respondents (NASS)"

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relating to:

WESTMINSTER CITY COUNCIL v. NATIONAL ASYLUM SUPPORT SERVICE [2001] EWHC Admin 138 (27th February, 2001)

"This case has arisen as a result of the refusal of the NASS to accept responsibility for providing accommodation and support"

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4 - R v. QBCOF 96/1475/D WESTMINSTER CITY COUNCIL EX PARTE A QBCOF 96/1490/D LONDON BOROUGH OF LAMBETH EX PARTE X QBCOF 96/1491/D LAMBETH LONDON BOROUGH COUNCIL EX PARTE P QBCOF 96/1492/D HAMMERSMITH AND FULHAM LONDON BOROUGH COUNCIL EX PARTE M QBCOF 96/1493/D WESTMINSTER CITY COUNCIL EX PARTE A QBCOF 96/1494/D HAMMERSMITH AND FULHAM LONDON BOROUGH COUNCIL EX PARTE M [1997] EW Court of Appeal Civ 1032 (17th February, 1997)

"But someone who is unable to provide for himself the basic necessities of life can properly be said to be in need of care and attention. They do not need to wait until the health of the asylum seeker has been damaged."

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relating to:

LONDON BOROUGH OF HAMMERSMITH and FULHAM EX PARTE 'M', R v. [1996] EWHC Admin 90 (8th October, 1996) IN THE HIGH COURT OF JUSTICE CO/2673/96, CO/2621/96

"The right to life is a fundamental human right. It is one which the law will protect. This consideration was referred to in R v Inhabitants of Eastbourne (1803) 4 East 103, where Lord Ellenborough C.J. said at p.107:-

"As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving..."

For those reasons, I think the respondents have adopted far too narrow a construction of s.21(1)(a) and must reconsider whether the individual applicants must be assisted."

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Extracts only

2- R. (on the application of MANI) v LONDON BOROUGH OF LAMBETH - LONDON BOROUGH OF ENFIELD EWHC 735 (Admin) (18 April 2002)

"Does a local authority have a duty to provide residential accommodation for a destitute asylum-seeker who suffers a disability which, of itself, gives rise to a need for care and attention which falls short of calling for the provision of residential accommodation?

3- WESTMINSTER CITY COUNCIL v. NATIONAL ASYLUM SUPPORT SERVICE [2001] EW Court of Appeal Civ 512 (10th April, 2001)

"The concept of asylum seeker receives under s.94(1) of the 1999 Act an expanded definition, embracing any person not under 18 who has made "a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom". S.21(1A) however goes wider, since it catches any person to whom s.115 applies, that is any person subject to immigration control

Our decision today indicates a mutually exclusive analysis of the roles of s.21(1)(a) of the 1948 Act and s.95 of the 1999 Act, which one would expect to apply whether or not the person seeking support was an asylum seeker. The relationship between and the working of the two sections will presumably be kept under review, and can if necessary be fine-tuned by legislation, regulation or, within limits, by pragmatic accommodation between the parties involved.

I too would therefore dismiss this appeal. "

Relating to:

4- WESTMINSTER CITY COUNCIL v. NATIONAL ASYLUM SUPPORT SERVICE [2001] EWHC Admin 138 (27th February, 2001)

Extract:

"Before the passing of the Immigration and Asylum Act 1999 there was considerable concern at the cost to Local Authorities of accommodating and providing support to asylum-seekers in this country. That cost bore most heavily on Local Authorities for districts to which, for one reason or another, asylum-seekers tend to go: for example, the London Boroughs, and Kent. Part VI of the 1999 Act made a substantial change to the burden of supporting and accommodating destitute asylum-seekers in this country. The question in this case is whether that burden in its entirety was removed from Local Government, or whether, as the Secretary of State for the Home Department contends, it was moved to Central Government only in relation to asylum-seekers whose only need for support and accommodation arises from their destitution, but not in respect of asylum-seekers whose needs arise not only because they are destitute, but also because they are sick, disabled, elderly or for some other reason. If the Secretary of State is correct, the result is curious, since it leaves with Local Government the burden of accommodating and supporting those asylum-seekers whose needs are the greatest and most costly to provide for. Indeed, Westminster go so far as to contend that the result for which the Secretary of State contends is absurd."

5- R v. QBCOF 96/1475/D WESTMINSTER CITY COUNCIL EX PARTE A QBCOF 96/1490/D LONDON BOROUGH OF LAMBETH EX PARTE X QBCOF 96/1491/D LAMBETH LONDON BOROUGH COUNCIL EX PARTE P QBCOF 96/1492/D HAMMERSMITH AND FULHAM LONDON BOROUGH COUNCIL EX PARTE M QBCOF 96/1493/D WESTMINSTER CITY COUNCIL EX PARTE A QBCOF 96/1494/D HAMMERSMITH AND FULHAM LONDON BOROUGH COUNCIL EX PARTE M [1997] EW Court of Appeal Civ 1032 (17th February, 1997)

Extract

"The destitute condition to which asylum seekers can be reduced as a result of the 1996 Act coupled with the period of time which, despite the Secretary of State’s best efforts, elapses before their applications are disposed of means inevitably that they can fall within a class who local authorities can properly regard as being persons whose needs they have a responsibility to meet by the provision of accommodation under section 21(1)(a). The longer the asylum seekers remain in this condition the more compelling their case becomes to receive assistance under the subsection. There is nothing remarkable in this since there is no dispute as to their entitlement to treatment from the Health Service and if Parliament has left the entitlement to treatment there is no obvious reason why it should not take the same course as to care and attention under section 21.

It follows therefore that in general the approach of Mr Justice Collins was correct and this appeal should be dismissed. Mr Beloff regards Collins J’s judgment as being flawed because he treated section 21(1)(a) as “a residual obligation to be engaged whenever other functions designed to alleviate hardship were not in place.” In particular it is submitted that Collins J was in error in interpreting “or any other circumstances” as being “intended to cover eventualities not foreseen and to ensure that there was a safety net to protect those who were in need of care and attention”. (transcript page 23 E). It is also suggested that he was in error in saying “But someone who is unable to provide for himself the basic necessities of life can properly be said to be in need of care and attention”. (transcript 28 E/F). These comments and similar comments contained in Collins J’s judgment may be the result of a misunderstanding, especially because of the judge’s references to “safety net”. The judge’s comments should not be taken as indicating that section 21(1)(a) is a safety net provision on which anyone who is short of money and/or short of accommodation can rely and in so far as the judge intended them to be read literally he was in error. Section 21(1)(a) does not have this wide application. Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under section 21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in section 21(1)(a). It is for the authority to decide whether they qualify. In making their decision, they can bear in mind the wide terms of the Direction to which reference has already been made, as contrary to Mr Beloff’s submission the direction is not ultra vires and gives a useful introduction to the application of the subsection. In particular the authorities can anticipate the deterioration which would otherwise take place in the asylum seekers condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged. "

Relating to:

7- LONDON BOROUGH OF HAMMERSMITH and FULHAM EX PARTE 'M', R v. [1996] EWHC Admin 90 (8th October, 1996) IN THE HIGH COURT OF JUSTICE CO/2673/96, CO/2621/96

Extract

"The right to life is a fundamental human right. It is one which the law will protect. This consideration was referred to in R v Inhabitants of Eastbourne (1803) 4 East 103, where Lord Ellenborough C.J. said at p.107:-

"As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving..."

This observation was made in the context of an argument by counsel that it did "not appear that a foreigner, .....could have been within the view and intent of the legislature in framing the system of poor laws"; see p.104. Although the 'law of humanity', which I would interpret as the protection of fundamental rights, cannot prevail against the clear words of a statute, it is to be presumed that Parliament has legislated in accordance with it.

It seems to me, therefore, that upon its true construction, s.21(1)(a) does impose a duty upon the respondents to provide for the applicants if satisfied that any of them have no other means of support and therefore are in need of care and attention, since such a need may exist where a person is unable to provide for himself.

I do not regard this conclusion as in any way frustrating the will of Parliament in enacting the 1996 Act. I find it impossible to believe that Parliament intended that an asylum seeker, who because of s.6 of the 1993 Act was lawfully here and who could not lawfully be removed from the country, should be left destitute, starving and at risk of grave illness and even death because he could find no-one to provide him with the bare necessities of life. Clearly Parliament intended that, unless they applied on entry, asylum seekers should find it very difficult to exist in this country. No doubt, it was hoped that the bogus would thereby be deterred from coming or forced to return whence they came. But if an entrant faced the dilemma and decided that he had to stay, because to return would be to court persecution, I am sure that Parliament would not have intended that he must nonetheless be left to starve. It is after all likely that genuine claimants will stay here since they have real fears of persecution if they return. But if Parliament really did intend that in no circumstances should any assistance (other than hospital care) be available to these asylum seekers, it must say so in terms. If it did, it would almost certainly put itself in breach of the European Convention on Human Rights and of the Geneva Convention and that is another reason why I find it unlikely that the safety net has been removed."

For those reasons, I think the respondents have adopted far too narrow a construction of s.21(1)(a) and must reconsider whether the individual applicants must be assisted.".