Case No: CO/7470/2012
Neutral Citation Number: [2013] EWHC 43 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/01/2013

Before:

MR ROBIN PURCHAS QC 
(SITTING AS A DEPUTY HIGH COURT JUDGE)
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Between:

	THE QUEEN (on the application of KA)	Claimant	
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	ESSEX COUNTY COUNCIL	Defendant	

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(Transcript of the Handed Down Judgment of
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Nick Armstrong (instructed by Deighton Pierce Glynn Solicitors) for the Claimant
Bryan McGuire QC (instructed by Essex County Council Solicitors) for the Defendant

Hearing date: 18th December 2012
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Judgment
Mr Robin Purchas QC: 
Introduction

1.	In this application the Claimant seeks judicial review of the Defendant’s refusal on the 5 July 2012 to provide accommodation and support for the Claimant and her family pursuant to the Children Act 1989 (“the 1989 Act”).  The Claimant is a Nigerian citizen and was at the time of the decision illegally in the United Kingdom.  Applications on behalf of the Claimant and her husband for leave to remain had been refused without a right of appeal.  The case involves a point of potentially wider importance as to the approach of a local authority in deciding whether refusal of support under the 1989 Act would involve a breach of Convention rights as part of the procedural protection for article 8.  

2.	The Claimant contends that under the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) the statutory framework includes a right of appeal on convention grounds against an immigration decision for the issue of removal directions.  The denial of support would in effect compel the Claimant and her family to return to Nigeria, as a result of which they would be deprived of the procedural protection for their Convention rights through an appeal under the 2002 Act.   

Context

3.	I should explain that with effect from the 9 July 2012 the Immigration Rules were amended to include rule 276ADE providing requirements to be met by an applicant for leave to remain on the grounds of private life in the United Kingdom to include a child under the age of 18 years who had lived continuously in the United Kingdom for at least 7 years.   That would prima facie include the eldest child of the family, who was born on the 16 December 2004.
  
4.	On the 7 December 2012 the Claimant made a further application for leave to remain relying on the amended rule and including additional evidence that had not previously been considered by the UK Border Agency (“UKBA”).  The application had not been determined at the time of the hearing.  In the circumstances, Bryan Maguire QC on behalf of the Defendant accepted that, as the application was not manifestly unsustainable or obviously hopeless, the Defendant would have been bound to provide support for the Claimant and her family pending its determination.  However, if in the event the application was refused, the position would be effectively as it was at the time of the Defendant’s decision on the 5 July 2012.  

5.	In the circumstances and bearing in mind that this is a situation in which the Defendant would seek guidance generally, it was agreed by the parties that it would be appropriate and convenient for the application to proceed to a full hearing.  I considered that in the circumstances it would be appropriate to hear the application in full, having regard to the particular features of the present case and generally the importance of the principle. 

The Facts

6.	The Claimant entered the United Kingdom illegally in 2002.  Her husband joined her later that year. They have had three children, all born in the United Kingdom aged at the time of hearing, 2 to 8 years of age.    On the 12 April 2009 the Claimant and her husband applied for leave to remain.  That was refused on the 17 May 2010. The third child was born on the 5 August 2010 and a further application for leave to remain was made on the 17 August 2010.  On the 3 September 2010 the Claimant’s husband was sentenced to 4 months imprisonment for the use of false documents.  On 27 September 2010, the application for leave to remain was refused.  On the 11 February a further application for leave to remain was made and supplemented on 14 October 2011, which was refused for reasons set out comprehensively in a letter from UKBA dated 13 January 2012.  

7.	On the 23 February 2012 an application was made for reconsideration of that decision, relying on article 8 and seeking in the alternative that an immigration decision should be made within 6 weeks by the issuing of removal directions.  

8.	The Claimant and her family had been living with her sister-in-law.   In March 2012 they were told to leave by 4th April 2012.  On the 28 March 2012 a letter before action was sent to the Defendant in respect of its failure to assess and provide for the Claimant under the 1989 Act.  That was followed on the 13 April 2012 by the issue of judicial review proceedings.  On the 16 April 2012 the Defendant provided accommodation and support for the Claimant and her family with accommodation in a caravan and the proceedings for judicial review were settled by a consent order on the 16 May 2012, including that the Defendant would give 14 days notice of any withdrawal of the interim accommodation and support.   

9.	In May 2012 the Defendant carried out a needs assessment of the children.  That noted in respect of the oldest child that “his parents have informed that he is being brought up to be identified with the African culture.”  In respect of needs and risks, the assessment recorded that UKBA had reported that “the family’s application for leave to remain has been refused on five occasions; however they have no plans to have the family removed immediately from the UK.  This does not mean however that services under Section 17 continue.”  It also reported that enquiries at Refugee Action indicated that they would be able to support the family to return to Nigeria with potentially up to £2,000 resettlement payment in addition to the payment of the flight tickets.  

10.	The Defendant also carried out an ECHR assessment.  The purpose of the assessment was set as: “As Nigerian citizens who are currently in the UK unlawfully the purpose of this assessment is to form an opinion on whether the family’s human rights would be contravened if they were to return to Nigeria, their country of origin and legal country of residence.”   

11.	In respect of article 8, the assessment concluded: 

“With regards to article 8 they have a right to a private and family life.  However as the family will be returning to Nigeria together, there will be no breach of their right to enjoy a family life.  Regards to the length of time the family have lived in the UK especially the children.  It is Essex County Council’s position that the children are still very young and therefore adaptable to changes in life.  It is also clear from the Child in Need Assessment that the children are brought up to be identified with the Nigerian culture and so it is expected that on return to Nigeria, they will be able to adapt easily to the Nigerian way of life.  Returning to Nigeria will also strengthen their family life as they will be reuniting with the extended family members.”

12.	The report concluded that there were no means of support for the family but 

“The children will no longer be classified as being in need once they return to their country of origin because their parents will be able to undertake work legally and support their family with their basic needs.  The children will be able to attend free education and have a good standard of medical care in their country of origin.  Should (the Claimant and her husband) decide to return to Nigeria, the local authority will continue to provide support in the interim whilst travel arrangements are being made.”
It set out the final conclusion that:

“In my professional opinion there is no reason why the family cannot return to their country of origin (Nigeria). ... The issue of the length of time the family has been in the UK, it is Essex County Council’s position that the children are of adaptable age.  The parents have informed that they are bringing up their children in the Nigerian culture; therefore they should easily adapt to life in Nigeria if they return and it will also strengthen their family life as they will be reunited with the extended family members.  There will be no breach of article .... 8 of the Human Rights Act if support was to be withdrawn by Essex County Council and the family return to Nigeria.”

13.	On the 12 June 2012 the Defendant wrote to the Claimant and her husband advising them that support would be terminated on the 2nd July 2012, enclosing the assessments to which I have referred.  

14.	On the 18 June 2012 the Claimant’s solicitors sent a protocol letter to the Defendant challenging the decision to withdraw accommodation and support.  The letter set out the factual background and grounds, including reference to the right to appeal against an immigration decision and the efforts being made to persuade UKBA to make that decision.   Reference was made to the rights of the children to a private life in the United Kingdom and the inadequacy of the assessment in that respect.   It made clear that the Claimant and her family would not voluntarily return to Nigeria.
  
15.	On the 25 June 2012 the immigration solicitors acting for the Claimant wrote setting out the intention to prepare a further application for leave to remain in the event that an immigration decision was not made beforehand.  It was intended to obtain reports from a psychotherapist in respect of the Claimant and an independent social worker report on her children, having regard to the effect of return to the Nigeria.  On the 2 July 2012 the Defendant agreed to extend the time for support to the 12 July 2012.  

16.	The Defendant made a formal response to the protocol letter on the 5 July 2012.  It denied any breach of Convention rights as a result of the decision to withdraw support.   It relied on the contention that there was no reason why the Claimant and her husband could not return to Nigeria.  It referred to the applications for leave to remain commenting: 

“This authority has not seen any evidence that would suggest that the family have a strong case in any challenge they may have against any future decision, whenever that decision may be made by the UKBA as to their removal.   Furthermore, there is no current application pending with UKBA and the facts as detailed in the letter copied from (the immigration solicitors) to this authority on 25 June 2012 discloses information which is as far as this authority is aware has not been raised previously by (the Claimant) since 2002. That said, the contents of that letter would be a matter for UKBA to consider.  At present there is no application or appeal outstanding and this authority cannot comment on the strength of any proposed case.  Therefore this authority denies that it is obliged to provide such support. ”

The letter relied on the conclusions in the assessment in support of its decision to withdraw support and its contention that that would not result in any breach of Convention rights.  

17.	The application for Judicial Review was filed on the 16 July 2012.  On the 17 July 2012 interim relief was granted, requiring the Defendant to continue to provide the Claimant and her family support and accommodation.  On the 8 August 2012 permission to apply for judicial review was granted on the papers together with an order that the Defendant continue to provide the Claimant and her family with support and accommodation. 
 
18.	As I have said, on the 7 December 2012 a further application for leave to remain was made to UKBA on behalf of the Claimant and her family, supported by extensive evidence, including a report from an independent social worker and a psychological report.   That application remained undetermined at the time of the hearing.  

The legal framework

19.	By Section 17(1) of the 1989 Act:

“It shall be the general duty of every local authority ... 
(a)	to safeguard and promote the welfare of children within their area who are in need; and
(b)	so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.”

20.	By Section 17(3) that service can be provided for the family of a particular child in need or for any member of his family if it is provided with a view to safeguarding or promoting the children’s welfare.  By Section 20, there is a duty to provide accommodation for any child in need within the authority’s area.
  
21.	By Section 54 of and Schedule 3 to the 2002 Act, a person illegally in the United Kingdom under that Act shall not be eligible for support or assistance under Section 17 of the 1989 Act.  By paragraph 2(1)(b) that paragraph will not prevent the provision of support or assistance to a child.  By paragraph 3: 

“Paragraph 1 does not prevent the exercise of a power or the performance of a duty if and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of 
(a)	a person’s convention rights ...”

It is the application of paragraph 3 that is central to the issues in this case, that is the extent that the exercise of the power to provide support or assistance under the 1989 Act to the Claimant and her husband is necessary for the purpose of avoiding a breach of a person’s Convention rights. 
 
22.	Section 82 of the 2002 Act provides for the right of appeal to the Immigration Tribunal against an immigration decision, which, by section 82(2)(g) and (h) includes the decision to issue removal directions but does not include a decision refusing leave to remain.   By Section 84(1)(g), the grounds of appeal include that removal in consequence of an immigration decision would be unlawful under the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.  The right of appeal is restricted in various ways, including where it is certified as clearly unfounded under section 94 and the general restriction to the single appeal opportunity under section 96.

23.	I have referred to the amendment to the Immigration Rules coming into effect from the 9th July 2012 above including a child under the age of 18 years who had lived continuously in the United Kingdom for at least 7 years.  That had previously been the subject of guidance in DP5/96, which was withdrawn on the 9 December 2008.  At the time of its withdrawal the Minister stated:

“The withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and article 8 of the Convention will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA.”

24.	Thus at the time of the decision on the 5 July 2012, although the proposed amendment to the rules had been published, the position was governed by consideration under the rules in accordance with article 8.   From the 9th July 2012 up to and including the further application for leave to remain on the 7 December 2012, it was governed by the Immigration Rule 276ADE.   

25.	After the hearing, pursuant to a request from the court, the court has been provided with UKBA guidance issued on the 13 February 2012 and amended on the 22 August 2012, relating to requests for a removal decision, such as in the letter from the Claimant’s solicitors dated 23 February 2012.   

26.	The guidance explains that it applies where a person has made a valid out of time application for leave to remain which has been refused, did not receive a removal decision when the application for leave to remain was refused, has failed to leave the UK voluntarily and has requested in a protocol letter or letter before action that a removal decision is made.   In those circumstances the guidance advises that in making a decision whether to accept a request for removal directions the decision maker must consider the need to promote the welfare of children who are in the United Kingdom, any direct cost that is being met by a local authority under, inter alia, section 17 of the 1999 Act and any exceptional and compelling circumstances.   The decision maker can make a removal decision when requested in cases including where:

•	“The refused application for leave to remain included a dependant child under 18 who has been resident in the United Kingdom for 3 years or more …
•	The applicant has provided evidence of being supported by a local authority under ... section 17 of the 1989 Act; or
•	There are other exceptional and compelling reasons to make a removal decision at that time.”   

Where the criteria are met, the guidance states that a removal decision should be made and served within 3 months of the date of the response.
   
27.	It is accepted that neither party before the court or their advisers were aware of this guidance, which, as explained in the note provided to the court, was not immediately apparent on the relevant website.   I also note that in the refusal of the request for an immigration decision from UKBA dated 25 February 2012, there is no reference to that guidance or whether or not the relevant criteria were met.  However, as part of the context for the present application it can be noted as providing some means for securing an early immigration decision, thus potentially triggering a right to appeal under the 2002 Act.

Relevant authorities

28.	In Liu v. Russia (No. 2) [2011] ECHR 29157/09 the ECHR was considering  the deportation of a claimant from Russia to China in breach, as it was alleged, of article 8 of the Convention.  The court dealt with the issue of procedural right at paragraphs 86 and 87 as follows:

“86. The principle of subsidiarity, however, does not mean renouncing all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by the Convention would be devoid of any substance.  In that connection it should be reiterated that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective (see Scordino v . Italy (No. 1) (GC) No. 36813/97 paragraph 192 ...).   .... Indeed it is settled case law that, whilst article 8 contains no explicit procedural requirements, the decision making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by article 8 (see Chapman v. UK (GC) No. 27238/95 paragraph 92 ... and Buckley v. UK 25th September 1996 paragraph 76 reports 196-IV)

87.   It follows from the above that, before accepting the judgment of the domestic courts that the applicant presented a national security risk, the court must examine whether the domestic proceedings were attended by sufficient procedural guarantees.   It reiterates in this connection that even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information.   The individual must be able to challenge the executive’s assertion that national security is at stake. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Al-Nashif v. Bulgaria 50963/99 paragraph 123 ...”

That case was concerned with national security but the principles are applicable generally to the concept of Convention procedural rights. 
 
29.	The question was considered in the present context by the Court of Appeal in R (Clue) v. Birmingham City Council [2011] 1 WLR 99 by Dyson LJ, as he then was, at paragraph 67 as follows:

“Such an approach is also consistent with the statement in the Strasbourg jurisprudence that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”: see Artico v. Italy 1980 3 EHRR 1 paragraph 33.   Mr Knafler relies on a number of Strasbourg decisions, in particular Ciliz v. The Netherlands 2000 2 FLR 469 where the European Court of Human Rights held that it was incompatible with article 8 for the Immigration Authorities to prejudge and pre-empt family law contact proceedings by expelling the immigrant father before their conclusion.   At paragraph 66 the court said:

“(The court) recalls in this respect the Convention does not in principle prohibit contracting states in regulating the entry and length of stay of aliens (see Berrehab v. The Netherlands 1988 11 EHRR 322 paragraph 28).  Nevertheless the court also reiterates that, whilst article 8 contains no explicit procedural requirements, the decision making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by article 8.”

68.   At para 71, the court said that the authorities not only prejudged the outcome of the contact proceedings by expelling the father when they did, but more importantly “they denied the applicant all possibility of any meaningful further involvement in those proceedings for which its availability for trial meetings in particular was obviously of essential importance.”  It is true that, as Mr Moffett points out, the decision of the Immigration Authorities in Ciliz v The Netherlands 2002 FLR 469 was different in kind from the decision by Birmingham which is under challenge in the present case.   But the effect of both decisions was to deny the applicant the possibility of asserting his article 8 rights in any meaningful way.  In the Ciliz case, he could not effectively participate in the contact proceedings.  In the present case, if the Claimant was required to leave the UK, her claim for indefinite leave to remain would be abandoned.”

30.	The situation considered in Clue was different from the present case in that in Clue there was an outstanding application for leave to remain to which the Convention procedural right attached.   

31.	In R (oao Daley-Murdock) v. SSHD [2011] Imm AR 4500 the Court of Appeal considered whether there was any  duty on the Secretary of State to make removal directions at the same time as refusing leave to remain so as to engage the rights of appeal pursuant to an immigration decision.   The court concluded that there was no such duty, the Secretary of State being entitled to expect the illegal overstayer in that case to leave the country voluntarily.   

32.	Lord Justice Sullivan dealt with the question of procedural rights at paragraph 12 of his judgment as follows:

“Mr de Mello also submitted that the Appellant, having made a claim under article 8 of the ECHR, had a right to have that claim determined in a way that was procedurally fair and that the necessary procedural safeguards included a right to appeal to an independent tribunal against the Respondent’s rejection of her claim.  The ability to apply for judicial review of the Respondent’s decision was not an adequate procedural safeguard because, however intensive the review, judicial review was not an appeal on the merits.  

13.   On the facts of the present case, this submission is academic because Winn Williams J allowed the appellant’s claim for judicial review of the Respondent’s article 8 decision ... .   He did so on conventional judicial review grounds because that is the way in which the appellant’s claim was argued for him.  Mr Blundell referred us to the decision of the House of Lords in Secretary of State for the Home Department v Nasseri 2009 UKHL 23 in which Lord Hoffmann explained that the court’s task when breach of a Convention right is in issue is to decide, not whether there has been a defective decision making process, but whether the applicant’s Convention rights have been violated: see paragraphs 13-15.

14.   In my judgment it is unnecessary to consider the hypothetical question – what is the practical difference between an appeal on the merits and judicial review when breach of the ECHR is in issue – firstly because the answer could make no difference on the facts of this case; and secondly because it is necessary to have regard to the legislative scheme as a whole when deciding whether or not the Appellant’s rights under article 8 are adequately protected.  Her opportunity to challenge the article 8 aspects of the respondent’s decision to refuse leave to remain did not exhaust her right to rely on article 8.  If and when a removal decision is made, she will be able to appeal to the Tribunal against that decision on the ground that removal from the UK would be in breach of her and her family’s article 8 rights: sections 82(1)(g) and 84(1)(g) (of the 2002 Act).   There is no need to impose an obligation on the Secretary of State to make simultaneous refusal of leave and removal decisions in all cases involving overstayers  where article 8 issues are raised in order to ensure that the process is article 8 compliant.”

Lord Justices Rimer and Sedley agreed with Sullivan LJ.  While for the reasons explained by Sullivan LJ, the comments in paragraph 14 were unnecessary to the decision in that appeal, they are in my judgment a relevant and persuasive explanation of the statutory framework providing procedural protection in connection with article 8.

33.	There are a number of relevant decisions dealing with the approach to the provision of support under the 1989 Act in the context of paragraph 3 of Schedule 3 to the 2002 Act.   Those authorities, for present purposes, are helpfully brought together in the judgment of Lord Justice Dyson in Clue, to which I have already referred.  I will therefore only make brief reference to two of the earlier decisions.

34.	In R (oao AW) v. London Borough of Croydon [2005] 9 CCLR 2540 Lloyd-Jones J, as he then was, was dealing with asylum seekers who had made further representations to the Secretary of State which had not been determined.  At paragraph 74 he concluded:

“74.  It seems to me that in considering whether the provision of support to failed asylum seekers is necessary in order to prevent a breach of Convention rights it will be necessary for the public body concerned to have regard to all relevant circumstances including, where appropriate, the matters which are alleged to constitute a fresh claim for asylum.  In many cases – possibly the great majority – it may well be inappropriate for a public body to embark on any consideration of the purported fresh grounds.  However, there may well be cases in which the purported fresh grounds are manifestly nothing of the sort and where it would be appropriate for the public body to take account of that fact in arriving at its decision in relation to asylum support.

75.   I accept the submission of the defendants and the Secretary of State that it is necessary to proceed on a case by case basis.  Each case will turn on its own facts and it will be necessary to examine the facts of each case with care.  …

76.   I should add that, contrary to the submission of the claimants, I do not consider that this conclusion is inconsistent with the principles expounded by the Court of Appeal in O or that it in any way diminishes the protection afforded to failed asylum seekers who wish to make a further claim for asylum.  It is only in the clearest cases that it would be appropriate for the public body concerned to refuse relief on the basis of the manifest inadequacy of the purported fresh grounds.  In addition, where appropriate, the individual will have recourse to judicial review in order to challenge such a decision.   Moreover, the alternative contended for by the claimants would lead to a situation in which the failed asylum seekers could secure assistance for prolonged periods on the basis of purported fresh claims which were manifestly nothing of the sort.”

35.	In Binomugisha v London Borough of Southwark [2006] EWCH 2254 (Admin) Mr Andrew Nicoll QC as a deputy judge of the High Court, as he then was,  was dealing with a claimant whose article 8 claim had not been determined.  At paragraph 52 he concluded:

“Parliament has, as Lloyd-Jones J said, dramatically changed the position by the 2002 Act.  Local authorities are inevitably drawn into an assessment of whether a person is in the UK in breach of immigration laws ... .   

53.    I accept that the Court of Appeal in Kimani and this court in AW has envisaged that there may be some claims to remain in the UK which local authorities could properly categorise as “manifestly unfounded” or “clearly specious”.  To this extent as well, things have moved on from the strict division between the Immigration Authorities on the one hand and the Social Services Departments on the other, which was envisaged by Hale LJ in ex parte O.   There is still some force to her point that the two sets of authorities enjoy different expertise.   That is particularly important when judging the validity of an outstanding application for permission to remain in the UK, as opposed to an assessment of a person’s existing immigration status.   The former is much more likely to involve the exercise of judgment, assessment and (in some cases) discretion, which Parliament has entrusted to the immigration authorities rather than local authorities ... Even without the expertise or legislative mandate of the Home Office, there will be some applications that a local authority can identify as utterly hopeless, but in my view they should proceed on the assumption that the application will fail only if it is “manifestly unfounded”, to use the expression that echoes through Kimani and AW.   It is not enough that they consider the application will fail or is not made out. ”

36.	Turning then to the Court of Appeal decision in Clue, it will be recalled that the case concerned an illegal overstayer whose application for leave to remain had not been determined.  In paragraph 27 Lord Justice Dyson drew attention to the two distinct rights in article 8.1, the right to family life and the right to private life.   He went on to refer to the decisions of the ECHR in Boultif v Switzerland [2001] 33 EHRR 1179 and Uner v. Netherlands 45 EHRR 421 paragraph 58,  including the importance of the duration of stay and connection with the country of residence in respect of the right to respect for  private life. 
  
37.	At paragraphs 32 to 42 Dyson LJ considered the decision in Kimani [2004] 1 WLR 272, which he concluded was distinguishable because it was concerned with a claim based on the alleged breach of right to family life not private life and that it was reasonable in that case to require the claimant to return to Kenya and to pursue her pending appeal from there.   

38.	At paragraphs 43 to 49, Dyson LJ went on to consider the decision in Grant [2005] 1 WLR 1781, concluding at paragraph 49 that it could be distinguished because reliance had not been placed on article 8 in respect of the effect of return to Jamaica on the right to family or private life.   

39.	At paragraph 53 Dyson LJ explained that the decision was concerned with a  person who was unlawfully present in the United Kingdom, was destitute and, apart from Schedule 3 of the 2002 Act, would be eligible for support and “has made an application to the Secretary of State for leave to remain which expressly or implicitly raises grounds under the Convention.”   

40.	At paragraph 59  he continued:

“In a domestic article 8 case where the claimant has not applied for leave to remain a local authority is considering whether article 8 constitutes an impediment to a person’s return to his country of origin, it must consider whether the applicant enjoys a private or family life in the UK within the meaning of article 8.1 and, if so, whether a return to his country of origin would constitute an interference with that right.   Much will depend on the facts of the particular case.  Thus, prima facie, the return of a married couple who have an established family life in their country of origin and have no children and have  been in the UK for a short time is unlikely to amount to an interference of their right to family life.  On the other hand, the position of a family with children who have been in the UK for a long time is likely to be quite different.  Prima facie, to require the return of such a family, and particularly where the children have spent their formative years in the United Kingdom, does amount to interference with their right to private life: see Uner v. Netherlands 45 EHRR 421.

60.   The question raised by this appeal is what the local authority should do when an application for leave to remain has been made expressly or implicitly on Convention grounds.   In answering this question it is necessary to recognise that  there is a fundamental difference between the social services functions of a local authority and the immigration functions of the Secretary of State.  This distinction was articulated by Hale LJ in R v. Wandsworth London Borough Council, ex parte O  2000 1 WLR 2539. 2557: ...”

41.	Lord Justice Dyson then set out the well known passage from the judgment of Hale LJ, as she then was, in Ex parte O, concluding:

“It makes much more sense both in practice and in principle to leave the task of deciding upon need to the provider of health, education or social services and  the task of deciding whether or not a person should be allowed to remain here to take advantage of those services to the immigration authorities.”

42.	Dyson LJ continued:

“61.   It is true that as a result of Schedule 3 to the 2002 Act local authorities are now required to make an assessment of immigration status in certain respects.   For example, as I have already said, they must decide whether an applicant is in the United Kingdom in breach of immigration laws ... .   Nevertheless, it would be contrary to the division of functions provided by Parliament to require local authorities to decide for the purposes of Schedule 3 of the 2002 Act whether a non-asylum seeking applicant to whom paragraph 6 does not apply is entitled to leave to remain.   That question is a matter for the Secretary of State to decide in accordance with the immigration rules and his immigration policies.

62	I find it difficult to conceive of circumstances in which a local authority could properly justify a refusal to provide assistance where to do so would deny to the claimant the right to pursue an arguable application for leave to remain on convention grounds.   The second reason given in Kimani ... for upholding the local authority’s refusal to provide assistance was that there was no infringement of article 8 in requiring the claimant to return to Kenya pending the determination of her appeal.  She could continue to prosecute her appeal and to require her to return to Kenya pending the determination of her appeal did not infringe her article 8 rights.  It is implicit in this reasoning that, if she had been unable to prosecute her appeal from Kenya, there would have been a legal impediment to requiring her to return.   

63.  I accept the submission of Mr Knafler that in enacting Schedule 3 Parliament cannot reasonably have intended to confer a general power on local authorities to pre-empt determination by the Secretary of State of applications for leave to remain.  In my judgment, save in hopeless or abusive cases, the duty imposed on local authorities to act so as to avoid a breach of the applicant’s Convention rights does not require or entitle them to decide how the Secretary of State will determine an application for leave to remain or, in effect, determine such an application themselves by making it impossible for the Applicant to pursue it.”

43.	Dyson LJ went on to refer to R (M) v. Islington LBC [2005] 1 WLR 884 and continued at paragraph 66:

“I conclude therefore that when applying Schedule 3, a local authority should not consider the merits of an outstanding application for leave to remain.  It is required to be satisfied that the application is not “obviously hopeless or abusive” to use the words of Maurice Kay LJ. Such an application would, for example, be one which is not an application for leave to remain at all, or which is merely a repetition of an application which has already been rejected.   But, obviously hopeless or abusive cases apart, in my judgment a local authority which is faced with an application for assistance pending the determination of an arguable application for leave to remain on Convention grounds, should not refuse assistance if that would have the effect of requiring the person to leave the United Kingdom, thereby forfeiting his claim.”

44.	Having referred to the Convention procedural right at paragraphs 67 and 68, to which I have already referred, Lord Justice Dyson went on to consider proportionality under article 8.2, including at paragraph 72 the following:

“I accept the submission of Mr Knafler, that, where the three conditions identified at paragraph 53 above are satisfied, the financial situation of the local authority is irrelevant.   Were the position to be otherwise, the person’s application for leave to remain would in fact be rejected on the basis that the local authority applies article 8.2 on one set of criteria (weighing the various calls on its budget), where the same application might be allowed by the Secretary of State (the person whose statutory function it is to determine such applications) of a wholly different set of criteria (weighing the need to maintain a firm and orderly immigration policy).   That is obviously incoherent.  It is also unfair and arbitrary.  It is unfair and arbitrary because it means that the outcome of the person’s application for leave to remain depends on the budgetary priorities of the particular local authority to which the claim for assistance is made.   The outcome of the application for leave to remain may be different if the claim for assistance is made to a different local authority whose budgetary priorities are different.  The disposal of applications for leave to remain should not depend on the vagaries of the budgetary considerations of local authorities.

73.  Different considerations apply where the person who is applying for assistance from the local authority does not have an outstanding application for leave to remain.   In that situation the local authority is entitled to have regard to the calls of others on its budget in deciding whether an interference with a person’s article 8 rights would be justified and proportionate within the meaning of article 8.2.”

45.	In the present case Mr McGuire QC places reliance on this paragraph to support his contention that the approach in Clue as a whole does not apply where there is no outstanding application or, he accepts, appeal.   I note that the particular passage in the judgment is strictly unnecessary to the decision in Clue.   Moreover, Clue was decided before Daley-Murdock and did not therefore have the benefit of the comments of Lord Justice Sullivan on the relationship between the refusal of leave to remain and removal directions as part of the Convention procedural right under article 8.   In any event, the particular comment is made with direct reference to the approach to proportionality under article 8.2 and whether it was appropriate for the authority to apply its own budgetary considerations.   I do not consider that the observation by Lord Justice Dyson was specifically aimed at the situation which arises in the present application, that is where there has been a refusal of leave to remain but no appealable immigration decision as part of the procedural framework under the 2002 Act.   

46.	In my judgment the above authorities establish, so far as relevant to the present application, the following principles:

(1)	that, as explained in Liu and Ciliz, article 8 provides expressly for the rights to family and private life but that implicitly includes the right for procedural protection which is fair and effective and such as to afford due respect to the safeguarded rights;

(2)	that paragraph 3 of Schedule 3 to the 2002 Act requires an authority to consider whether and to what extent the provision of support under the 1989 Act is necessary  to avoid a breach of a person’s Convention rights; in principle that would include the right to a relevant procedural safeguard; 

(3)	that necessarily each case is to be considered on its own facts and circumstances;
 
(4)	that, where there is an outstanding application for leave to remain, an authority should respect the right to that procedural safeguard under article 8, at least in cases that are not obviously hopeless or abusive; and
 
(5)	that, as explained  in Daley-Murdock, the procedural safeguard for article 8 rights under the 2002 Act includes the opportunity for appeal against removal directions following the refusal of leave to remain; the existence of that statutory safeguard made it unnecessary for the court in Daley-Murdock to consider the differences between an appeal on merits and judicial review, whatever the intensity of review, having regard to the approach to Convention rights explained by Lord Hoffmann in SSHD v Nasseri [2009] UKHL 23; [2010] 1 AC 1.

47.	The question in the present case is whether in principle or on its particular facts the Claimant’s putative right of appeal against the issue of removal directions, whenever that might be, would preclude the Defendant from withdrawing support based on its own assessment of the effect on the Convention right to a family and private life, at least in the absence of a finding that the prospective appeal was obviously hopeless or abusive. 
  
Submissions

48.	Mr Nick Armstrong, who appears for the Claimant, submits that:

(1)	The Claimant had made it clear that she and her family would not voluntarily return to Nigeria, notwithstanding the refusal of leave to remain.

(2)	Furthermore, at the time of the decision, it had been explained that not only had the Claimant been seeking an immigration decision from UKBA so as to enable her and the family to appeal, but also that a further application for leave to remain based on new evidence was intended to be made.
(3)	The effect of the decision to withdraw support was inevitably that the Claimant and her family would be compelled to leave the United Kingdom and return to Nigeria.

(4)	That would have the effect of denying the Claimant and her family of their procedural safeguard in respect of their article 8 rights, including, in particular, the right of the oldest child to a private life in the United Kingdom, having regard to the length of his residence, reflected in the then intended amendment of the Immigration Rules.

(5)	It is plain from the Defendant’s assessment that there was no proper consideration, if any, of the effect on that Convention procedural safeguard; moreover there was no finding that the putative appeal or any new application for leave to remain would be obviously hopeless or abusive; in its response to the protocol letter the Defendant made clear that any further application was a matter for UKBA to consider and that the authority was not able to comment on the strength of the Claimant’s case. 
  
(6)	That was also consistent with the Defendant’s acceptance that with the making of the further application for leave on the 7 December 2012 it was no longer open to the Defendant to refuse support, at least until the final decision on that application. 
  
(7)	Furthermore, on the available evidence  there were demonstrably strong prima facie grounds to support an appeal,  having regard to the then proposed amendment to the rules and the length of the time the children had been in this country and the evidence from the Claimant in that respect.

(8)	While potentially the period before an immigration decision in removal directions from UKBA was indefinite, that is a matter in the hands of UKBA in accordance with the statutory framework and in any event, in light of the guidance that has been discovered there is the real prospect for an early immigration decision in that respect.

(9)	A decision requiring respect for the procedural safeguards under the statute for the Claimant’s article 8 rights and those of her family would be consistent with the authorities referred to above.  It would be a decision made on the particular facts and circumstances of the present case so as to ensure that there is effective and fair protection for those rights; it would also be consistent with the continuing protection accepted by the Defendant with the making of the new application; insofar as those principles apply to other cases with similar factual or circumstantial characteristics, that would accord with the proper application of the Convention including the protection of Convention rights and would not  set any inappropriate precedent or lead to the opening of any floodgates, as suggested on behalf of the Defendant.   

49.	Mr McGuire QC submitted that:

(1)	It remained the case that the Claimant and her family were all unlawfully present in the country; moreover their applications for leave to remain had been consistently refused on numerous occasions.

(2)	The case for the Claimant essentially depended on demonstrating that the decision in Clue required the Defendant to defer in its decision making to the UKBA, even where there was no outstanding application or appeal.

(3)	That is manifestly not what was decided in Clue, having regard to paragraph 73 of the judgment of Lord Justice Dyson where the Lord Justice explains that the approach set out in that decision had no application where there was no outstanding application to be determined. 
  
(4)	In any event, the requirement for procedural protection of article 8 rights was appropriately secured through  the opportunity for judicial review, in respect of UKBA’s refusal of leave to remain and, so far as necessary, the  Defendant’s decision on the merits of the article 8 grounds, in accordance with normal administrative review principles; the comments of Lord Justice Sullivan in Daley-Murdock had no specific application to the situation where an authority is considering the need for support under the 1989 Act.

(5)	That is consistent with the UKBA guidance dated the 13 February 2012, which only applies where there is a formal letter before action or protocol letter, plainly anticipating proposed proceedings for judicial review.

(6)	There is nothing inconsistent or unreasonable in the approach outlined above when compared with that taken to the further application for leave to remain in the present case; the exercise of the authority’s powers and duties under the 1989 Act must respond to the particular circumstances at time at which it came to be considered including whether or not for the purposes of the 2002 Act there was an outstanding application which was not obviously hopeless or abusive.

(7)	A decision allowing judicial review in the present case would mean that, notwithstanding the decision of UKBA to refuse leave to remain, authorities across the country would be required to fund illegal immigrants such as the Claimant and her family for an indefinite period, depending on when and if UKBA chose to issue removal directions; the consequence would be to encourage those refused leave to remain illegally in this country, a result that would be directly contrary to the policies underpinning the 2002 Act.
  
Consideration

50.	The starting point in my judgment has to be the 2002 Act, which precludes the provision of support under the 1989 Act save to the extent necessary to avoid a convention breach.   That necessarily imposes on an authority the responsibility to determine whether denial of support would involve a Convention breach.  It is in that context that the consistent line of authority culminating in Clue has developed, reflecting the responsibility under the Immigration Acts, as explained in Ex parte O.  The effect of those authorities is that, save where the case is obviously hopeless or abusive, an authority cannot generally deny support under the 1989 Act if the effect will be to negate the procedural right for protection of the Convention right.  Thus, where there is an outstanding application or appeal, the role of the authority should be limited to determining whether there is a substantive issue to be determined as part of the relevant procedural safeguard or whether it is obviously hopeless or abusive.   In each case that question will be case and fact specific.      

51.	As explained by Lord Justice Sullivan in Daley-Murdock, the structure of the 2002 Act secures the procedural safeguard required in Convention cases by the statutory right to appeal to the Immigration Tribunal, where there is an appealable immigration decision.  That procedural right itself is subject to limitations both as to what will generally be a single right of appeal and otherwise to exclude cases which are clearly unfounded.  However, the right of appeal is for reconsideration as opposed to review.   While Parliament can be taken as envisaging that with the refusal of leave and subject to judicial review of that decision, an illegal immigrant could be expected to leave voluntarily, where a claimant will not leave voluntarily and has a substantive convention claim Parliament has determined that the decision to issue removal directions should be subject to appeal to the Tribunal enabling the convention rights to be reconsidered.  In my judgment that comprises an essential part of the overall framework that has been put in place so as to secure fair, coherent and effective means to protect the convention rights of those in this country.
 
52.	Whether the procedural right is engaged will depend upon the particular circumstances of the individual case.  It would not generally apply until an application for leave to remain had been made.  But I do not accept that with the refusal of leave to remain and pending the issue of removal directions the procedural protection under the 2002 Act including appeal against an immigration decision ceases to have relevance or is replaced by the general right to judicial review.  Where on the facts of the case it is demonstrated that a person has a substantive convention claim, for example to a family or private life in this country, that would found an appeal against removal directions if made, a decision that effectively deprived the person of that protection would in my judgment be in breach of his convention procedural right.  The fact that the right will only be activated as and when the immigration decision is made does not negate its existence as part of the person’s convention right in the interim. 

53.	In my judgment, in line with the observations by Lord Justice Sullivan in Daley-Murdock, the existence of judicial review would not be a complete answer to the denial of that procedural right.   In the circumstances, in my judgment, it would plainly be material for an authority to consider whether the provision of support was necessary to avoid a breach of that procedural right for protection of article 8 in the particular circumstances of the case.  While it would remain a matter to be determined on the particular facts and circumstances of the case, in general the opportunity for re-hearing as opposed to review, whatever its intensity, would be a procedural protection of importance.  

54.	In the present case I am entirely satisfied that in principle the procedural right to appeal against removal directions if and when they were made would be a right of significance and one to which the Claimant and her family would be entitled in protection of their article 8 rights.   Without any detailed examination of the substantive merits it is in my judgment clear that there would have been arguable grounds for an appeal with reasonable prospects that a different decision might be made, quite apart from the additional material that forms the subject of the application made on the 7 December 2012.   The Defendant was aware at the time of its decision on the 5 July 2012 that the Claimant and her family would not voluntarily return to Nigeria, that they were seeking an immigration decision to enable an appeal to the Tribunal and that in any event they were preparing a further application for leave to remain, supported by new evidence and in the light of the proposed amendment to the Immigration rules. 

55.	Thus I conclude that there was a substantive Convention procedural right comprised in the statutory right to appeal against the immigration decision for removal directions which would be required for the removal of the Claimant and her family in the absence of any other supervening event.   It is equally plain in my judgment that the decision to remove support was made in recognition that the consequence would be the return of the Claimant and her family to Nigeria and that in effect that would deprive them of their procedural right of appeal under the 2002 Act against the immigration decision when it was made.   

56.	Notwithstanding that clear linkage between the decision to withdraw support and the procedural right, there is scant, if any, consideration of the implications in the Defendant’s assessment or as part of its recorded decision.  In particular it was not suggested that the potential appeal against an immigration decision would be obviously hopeless or abusive, the response to the protocol letter simply indicating that the authority was unable to assess the strength of any proposed case.    In my judgment, the proper approach on the facts of this case, should have been to provide support so far as necessary to preserve that procedural right to protection of the Claimant’s and her family’s article 8 rights unless the Defendant concluded that it was in effect obviously hopeless or abusive.   

57.	I am not persuaded that this would in itself set any unfortunate or inappropriate precedent.  On the contrary it seems to me to be wholly consistent with the statutory scheme under the 2002 Act, as well as affording due respect to the safeguarding of Convention rights.  The consequence would, in my judgment, be principled and properly reflect the decision of the Defendant that with the making of the new application for leave it would no longer be appropriate for it to deny support.   The alternative approach by which authorities could in cases such as the present effectively determine the article 8 issues which would in effect be the same as those which would be addressed on appeal against removal directions would conflict with the principles as to responsibility for these matters as explained in the authorities to which I have referred.  It would run the risk of arbitrariness and injustice with decisions by individual authorities to which the Court pointed in Clue. It would also undermine the statutory framework for protection of convention rights as explained in Daley-Murdock. 

58.	I recognise that the statutory framework providing protection through appeal against the immigration decision means that support may have to be provided by individual authorities in the interim.  The period will be governed by the decisions as to the timing of any removal directions by the UKBA, but it is clear from the relevant guidance that this is one of the factors to be considered in issuing removal directions.  However, so far as it is relevant, in my judgment the interests of maintaining a fair, coherent and effective system for protection of these important convention rights would significantly outweigh the particular implications for continuing support in appropriate cases.

59.	In my judgment, accordingly, in the particular circumstances of the case, the decision on the 5 July 2012 was flawed in that it did not take into account or respect adequately or at all the effect on the Claimant’s and her family’s Convention right to procedural protection.  In the circumstances this application will be allowed and the decision quashed.