AW, R (on the application of) v London Borough of Croydon [2005] EWHC 2950 (Admin) (16 December 2005)

AW, R (on the application of) v London Borough of Croydon [2005] EWHC 2950 (Admin) (16 December 2005)

A failed asylum-seeker who is in the United Kingdom in breach of the immigration laws within the meaning of section 11 of the Nationality, Immigration and Asylum Act 2002 is, by virtue of paragraph 7 of Schedule 3, ineligible for support or assistance identified in paragraph 1 of Schedule 3, subject to exceptions in paragraphs 2 and 3. Where support is necessary to avoid a breach of Convention rights, the Secretary of State's duty under section 4 of the Immigration and Asylum Act 1999 is engaged, but local authorities retain responsibility under section 21 of the National Assistance Act 1948 only where the need for care and attention is not solely due to destitution.

Citation
[2005] EWHC 2950 (Admin)
Parties
First Claimant: A W; Second, Third & Fourth Claimants: A, D and Y; First Defendant: London Borough of Croydon; Second Defendant: London Borough of Hackney; Interested Party: Secretary of State for the Home Department
Jurisdiction
England and Wales
Judgment Date
16 December 2005
Procedural Posture
Judicial Review / Preliminary Ruling on Legal Issues
Outcome
Preliminary ruling; claimants ineligible for local authority support under Schedule 3, paragraph 7, except as necessary to avoid breach of Convention rights.
Legal Topics
Asylum Support, Failed Asylum Seekers, Local Authority Duties, Immigration Status, Convention Rights, National Assistance Act 1948, Immigration and Asylum Act 1999, Nationality, Immigration and Asylum Act 2002
Administrative Law Immigration Law Human Rights Law Asylum Support Failed Asylum Seekers Local Authority Duties Immigration Status Convention Rights +3 more

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Parties

A W

First Claimant

A, D and Y

Second, Third & Fourth Claimants

London Borough of Croydon

First Defendant

London Borough of Hackney

Second Defendant

Secretary of State for the Home Department

Interested Party

Procedural Posture

Judicial Review / Preliminary Ruling on Legal Issues

Legal Issues

  1. 1 Whether failed asylum-seekers in breach of immigration laws are excluded from support by Schedule 3, paragraphs 1 and 7 of the Nationality, Immigration and Asylum Act 2002
  2. 2 Whether local authorities or the Secretary of State are responsible for support necessary to avoid a breach of Convention rights under section 21 of the National Assistance Act 1948 or section 4 of the Immigration and Asylum Act 1999
  3. 3 Whether making a purported fresh claim for asylum always necessitates support to avoid a breach of Convention rights pending a decision

Ratio Decidendi

A failed asylum-seeker who is in the United Kingdom in breach of the immigration laws within the meaning of section 11 of the Nationality, Immigration and Asylum Act 2002 is, by virtue of paragraph 7 of Schedule 3, ineligible for support or assistance identified in paragraph 1 of Schedule 3, subject to exceptions in paragraphs 2 and 3. Where support is necessary to avoid a breach of Convention rights, the Secretary of State's duty under section 4 of the Immigration and Asylum Act 1999 is engaged, but local authorities retain responsibility under section 21 of the National Assistance Act 1948 only where the need for care and attention is not solely due to destitution.

Court Disposition

Preliminary ruling; claimants ineligible for local authority support under Schedule 3, paragraph 7, except as necessary to avoid breach of Convention rights.

Orders

  • Applications for judicial review to proceed on remaining issues if necessary.
  • Local authorities not required to provide support under section 21 of the 1948 Act to failed asylum-seekers in breach of immigration laws, except to avoid breach of Convention rights.