Judge orders council to conduct human rights assessment about withdrawing support from failed asylum seeker

The London Borough of Croydon must conduct a human rights assessment of an Albanian from whom it is seeking to withdraw support, the High Court has said.

Sir Ross Cranston, sitting as a High Court judge, heard the case of DK, an Albanian national aged 23.

DK had claimed asylum as an unaccompanied child and Croydon accommodated him under the Children Act 1989.

In May 2021, when he was 21 years old, the council refused to support him any longer as under schedule 3 to the Nationality, Immigration and Asylum Act 2002 it believed it no longer owed a duty to him under the Children Act 1989 since his asylum claim had been rejected and there was no barrier to his returning to Albania.

DK challenged the lawfulness of Croydon’s refusal to provide him with a personal adviser and a pathway support plan as a care leaver on the basis that the council failed to decide whether this denial of support to him was compatible with his rights under the European Convention on Human Rights. He submitted that Croydon should have conducted a human rights assessment of his needs.

He argued that without schedule 3 of the Nationality, Immigration and Asylum Act 2002 he would be entitled to support from the council as a care leaver being aged under 25, and provided with a personal advisor and a pathway plan.

Croydon said that since DK’s appeal rights were exhausted he could not be assisted because of schedule 3.

It said there was no statutory requirement to carry out a human rights assessment nor any departmental guidance that advised that this should be done.

DK was a failed asylum seeker and would remain as such unless the Home Office accepted his further submissions.

In DK, R (On the Application Of) v London Borough of Croydon [2023] EWHC 1833 (Admin) Sir Ross said: “The council seem to have taken the view that it was not obliged even to consider the claimant's human rights issues because of schedule 3 NIAA.

“The fact is that the council is the primary decision-maker in relation to requests for support under the Children Act 1989. It had received a request for support from a care leaver.

“To decide whether it had to provide support notwithstanding schedule 3 NIAA 2, it could not make that decision without considering whether the Convention exception in paragraph 3 applied.”

He said significant new material had arisen including on the risk of trafficking and DK’s mental health, and “the council might well have decided that the way properly to assess whether support was necessary in order to avoid a convention breach was to undertake a human rights assessment”.

Sir Ross noted Croydon had now agreed to this. He said DK’s second ground - that Croydon was obliged to provide support under ECHR articles 4 and 8 - would await judgment pending the assessment’s outcome.

Mark Smulian