| SPOTLIGHT |
A High Court judge has quashed the decision of the London Borough of Croydon to end accommodation and other leaving care support it had been providing for several years to an asylum seeker whose appeal rights are now exhausted.
Dexter Dias KC, sitting as a Deputy High Court judge, said two prime questions were sharply raised by the case of CVN, R (On the Application Of) v London Borough of Croydon [2023] EWHC 464.
“First, what are our public obligations to young people transitioning into adulthood, who were once looked-after children for child protection purposes, but who are present in the United Kingdom in breach of immigration rules? Does the kind of support they are entitled to expect as former looked-after children get "switched off" when their asylum appeal rights are exhausted, or are there continuing obligations to prevent breaches of their rights under the ECHR? If so, which rights, and for what purpose? ("Issue 1") Second, when is interference with the right to education of such young people granted by Article 2 Protocol 1 of the ECHR ("A2P1") justified, that is proportionate? ("Issue 2").”
The judge said both these issues were of great personal importance to CVN, the claimant, and of wider public importance. What was of particular forensic interest in the case was that there was no directly decided authority on the key question raised in either issue, he added.
Judge Dias also said the context of the case was “not without controversy - the always-evolving treatment in this country of migrants and those seeking asylum”.
CVN had arrived in the UK as an unaccompanied child seeking asylum from his home country of Albania. He was then 17 years old and therefore a child in law. In 2018 he applied for asylum on the basis that he would face persecution in Albania due to his sexuality.
However, his asylum claim was refused by the Home a year later. Challenges in the First-Tier Tribunal and the Upper Tribunal were unsuccessful and he became appeal rights exhausted in August 2021.
In February 2022 Croydon wrote to CVN to say that, as he was now a "failed asylum seeker", it would refuse him accommodation and other support under s.23C of the Children Act 1989.
CVN, now 21, challenged the decision to end accommodation and other leaving care support. He advanced four grounds:
Judge Dias noted that following its acknowledgement of service on 12 April 2022, the council conceded Ground 2. “That is because in cases of destitution, the relevant local authority cannot refuse accommodation assistance based on the possibility of s.4 support from the Secretary of State via the National Asylum Support Service”, he told the court.
The judge said that before he turned to the issues, he must explain why a breach of Art. 3 ECHR – “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” – is taken so seriously. He said: “It is one of the centrepiece human rights protections in the Convention”.
Considering Issue 1: ‘Power to prevent breaches of Convention rights’, Judge Dias said: “On this issue, I must determine Q3 only” which is as follows:
(3) Despite the claimant's prima facie ineligibility, is the defendant nonetheless required to perform the duty referred to at (1), if and to the extent that this is necessary, to avoid a breach of:
a) any of the claimant's ECHR rights, including those protected by Art. 3 and Art. 8 ECHR?
b) Only his right to education protected by Article 2 Protocol 1 ECHR?
The judge said: “Parties agree that while ordinarily the defendant would have a duty of support for the claimant as a former relevant child, he is at the same time prima facie ineligible for that support due to his immigration status. However, there is an exception to that ineligibility provided by Paragraph 3 of Schedule 3 [of the Nationality, Immigration and Asylum Act 2002] – if the support power (note here now power not duty) is necessary to prevent a breach of the former relevant child's "Convention rights". Here is the key dispute. What is meant in the statute by Convention rights?”
Outlining CVN’s position, he said: “The claimant's position is straightforward: the words mean what the statute says. The relevant local authority must exercise its power if necessary to prevent a breach of any of the Convention rights listed in s.1 Human Rights Act 1998. Against this, the defendant argues that the true context of the Schedule 3 Paragraph 3 exception is, as Mr Hoar termed it, a ‘collection of connected statutes and statutory provisions’. Thus the submission is that one must interpret Paragraph 3 as part of a wider statutory scheme.”
Concluding on issue 1, Judge Dias said: “I find that Art. 3 ECHR is included in the "Convention rights" referred to in Schedule 3 Paragraph 3 of NIAA. Therefore, the defendant has made significant public law error. It did not consider if its assistance power was exercisable to prevent a breach of Art. 3 as connected to the claimant's educational needs (and associated breach of right to education under A2P1).”
On Issue 2, ‘Proportionality of breach of A2P1’, the judge noted that as the claimant had succeeded on issue 1, he would “deal with this issue less comprehensively than I otherwise would have done”.
In his analysis of the issue, the judge noted that although the defendant's skeleton “cast doubt” over whether the claimant did have a right to education, at the oral hearing, the council conceded that the claimant did have such a right.
When asked whether that right would be “infringed by removal of accommodation and associated support”, the council once more conceded, he said.
Dexter Dias KC said: “That was, it seems to me, inevitable. Access to education must be effective. If a person is destitute, it is impossible to conceive how that would not significantly impact her or his ability to meaningfully access education. Therefore, the question the court was left with was the one of proportionality.”
In argument, the defendant relied upon the following six factors:
On issue 2 the judge reached “the following conclusions:
i) The protection of ratepayers' money is a sufficiently important objective to be capable of justifying interference with the protected but qualified right to education;
ii) Not funding accommodation and associated support for a person with unsettled status is rationally connected to that objective in that it furthers the end;
iii) I am just, on balance, able to accept that it is not clear what less intrusive measure could be adopted by the relevant local authority short of withdrawing funding without unacceptably compromising the objective of protecting the ratepayers' funds;
iv) However, and despite the foregoing three factors, when performing the necessary balancing exercise at Stage 4, I judge that the withdrawal of funding would have a severe effect on the claimant's right to education and effective access to it and this far outweighs the objective of protecting ratepayer resources, asserted as it without any meaningful detail or particularity.” [judge's emphasis]
Judge Dias said he therefore found that the defendant council had not demonstrated that the interference was not disproportionate. “The burden is on the State to demonstrate proportionality (R (Quila) v Secretary of State for the Home Department [2012] 3 WLR 836 at [44]) or a lack of disproportionality. The defendant has failed to meet that burden. Being asked to judge this matter afresh, I have no hesitation in concluding that the interference would be disproportionate. Put another way: I find it necessary for accommodation and associated expenses to continue to be paid to avoid a disproportionate breach of (or interference with) the claimant's right to education and effective access to it.”
The judge quashed the order made by Croydon. He said: “Here the decision to withdraw accommodation and associated support suffered from the legal fallacy that it was unnecessary to consider breaches of the claimant's Art. 3 rights.
“That was wrong in law. Fundamentally so. I heard no argument against the granting of a quashing order should the error of law pleaded by the claimant be found. Here I find that the public law error here was so stark and decisive that there cannot be any credible course but to quash the decision. The decision cannot survive the error.”
The judge declared that it was necessary for the council to continue to pay for CVN’s accommodation and “provide subsistence support to the claimant under section 23C(4)(b) of the Children Act 1989 to avoid a breach of his rights under Article 3 ECHR” and therefore support his continuing education.
Disposing of the case, the judge said: “Here officials in the local authority did not act in accordance with the law, but contrary to it. Reviewing the defendant's decision independently and impartially, I quash it. It is legally flawed. I grant a declaration about how the local authority should deal with the rights of this vulnerable young adult.
"CVN's future – including his immigration status – remains unresolved. Until it is, the law that affects his case must be properly applied.”
The judge reminded himself of the purpose of the s.23C powers. “It was succinctly put by Christopher Clarke LJ in R (GE (Eritrea)) v Secretary of State for the Home Department [2014] EWCA Civ 1490 at [17] as follows:
"The purpose of these provisions is to ensure that a relevant or eligible child is not simply left without support the moment he reaches his 18th birthday but receives the same sort of support and guidance which children can normally expect from their own families as and when they become adults."
Judge Dias said: “The London Borough of Croydon stands as CVN's corporate parent in the absence of his own. The court expects this local authority to perform its statutory duty. That is to continue to fund CVN's accommodation and associated living expenses to support his education by preventing him becoming destitute. Destitution would significantly impair his ability to access and engage in education. That must be prevented from happening. This is how the defendant local authority fulfils its duty to act in accordance with the law.”
Lottie Winson
