A source of support

November 17, 2011

The High Court recently handed down a key ruling on whether local authorities or central government were responsible for providing accommodation and support to the children of failed asylum seekers. Clare Hardy examines the judgment.

In R (on the application of VC and others) v Newcastle City Council; R on the application of K) v Newcastle City Council [2011] All ER (D) 189 (Oct) the claimant in the second case, K, entered the United Kingdom in December 2004 and claimed asylum. Her claim was refused and, in December 2005, her appeal against that decision was dismissed. The asylum support that K had been receiving under section 95 of the Immigration and Asylum Act 1999 was terminated.

In January 2008, K gave birth to a child, J. In December 2007, the defendant local authority began to provide support and, from January 2008, accommodation under section 17 of the Children Act 1989. In March 2010, K gave birth to a second child, B, and the local authority increased the level of the family’s support.

In June 2010, the local authority wrote to K and informed her that if she did not apply to the Secretary of State for support under section 4 of the Immigration and Asylum Act 1999, her support under section 17 of the Children Act 1989 would cease. K’s application for support under section 4 of the Immigration and Asylum Act 1999 was refused and her appeal against that decision was dismissed. In November 2010, the local authority wrote to K again in similar terms. However, the local authority agreed that K’s support under section 17 of the Children Act 1989 would continue pending the outcome of the judicial review of the claimants in the first case.

The claimants in the first case were VC and her two children, DC and JC. VC had claimed asylum in the United Kingdom but her claim had been refused. In January 2005, VC’s submissions about Article 3 of the European Convention on Human Rights were accepted as a fresh claim by the Secretary of State. She therefore became an asylum seeker again and was entitled to support under section 95 of the Immigration and Asylum Act 1999.

In August and November 2010, the local authority told VC that if she did not apply for support under section 4 of the Immigration and Asylum Act 1999, her support under section 17 of the Children Act 1989 would be terminated. VC applied for judicial review of that decision. At the hearing, it was agreed that, subject to satisfying the destitution criteria for eligibility, VC and her children were eligible for support under section 95 of the Immigration and Asylum Act 1999. Further, by virtue of section 122(5)(b)(ii) of the Immigration and Asylum Act 1999, the local authority did not have the power to provide VC and her family with accommodation or support under section 17 of the Children Act 1989. Therefore, VC’s claim for judicial review could not succeed. There was no question of K and her family being entitled to support under section 95 of the Immigration and Asylum Act 1999 and K was permitted to commence judicial review proceedings.

The principal issue that fell to be determined was as to which public authority had to take responsibility for providing accommodation and support to children in need within migrant families who were not entitled to support under section 95 of the Immigration and Asylum Act 1999.

The application was allowed. It was held that: in contrast to section 17 of the Children Act 1989, section 4 of the Immigration and Asylum Act 1999 was a residuary power and the fact that support was or might be available under section 4 did not of itself exonerate a local authority from what would otherwise be its powers and duties under section 17. If a local authority had not merely assessed a child as being “in need” but was actually providing services and support on that basis under section 17, it could decide to discontinue such support on the basis that section 4 support was or might be available, but only if it could be shown, first, that the Secretary of State was able and willing or if not willing, could be compelled, to provide section 4 support, and, second, that section 4 support would suffice to meet the child’s assessed needs.

In this case, the local authority had failed to demonstrate that any support which might be available under section 4 of the Immigration and Asylum Act 1999 would be adequate to meet the assessed needs of any of K’s children. Therefore, the decision in respect of K had been unlawful.

Clare Hardy is a solicitor at Eversheds. She can be contacted on 0845 498 4355 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..