Birmingham City Council v Clue  EWCA Civ 460 (29 April 2010)
In this case, the England and Wales Court of Appeal held that the Birmingham City Council’s refusal to provide financial assistance and accommodation to a family while their immigration application was pending resulted in a breach of the family’s right to respect for family and private life under art 8 of the European Convention of Human Rights.
Amalea Clue and her eldest daughter were Jamaican nationals. They were granted leave to enter the United Kingdom as visitors for six months in 2000. Ms Clue’s later application for leave to stay in the UK as a student was dismissed on appeal in March 2003. Ms Clue remained in the UK and had three children with her British partner. No steps were taken to remove Ms Clue or her children and they were supported by her partner until 2007 when the relationship broke down.
In October 2007, Ms Clue applied to the UK Border Agency (‘UKBA’) for indefinite leave for herself and her four children to remain in the UK. This application relied on the Secretary of State for the Home Department’s Policy DP 5/96, which provided that, where the child of a family had lived in the UK for seven years or more, there was a presumption that indefinite leave to remain would only be refused in exceptional cases. The UKBA withdrew DP 5/96 in December 2008, but it was in effect at the time of Ms Clue’s application and was therefore relevant to her case.
While Ms Clue’s application for indefinite leave to stay in the UK was pending, she applied to the Council for financial assistance under s 17 of the Children Act 1989. Under s 17, every local authority has a general duty to safeguard and promote the welfare of children within their area by providing appropriate services (including accommodation and financial or in-kind assistance).
However, under the Nationality, Immigration and Asylum Act 2002 (‘NIA Act’), however, a person is not eligible for assistance under s 17 of the Children Act if he or she is in the UK in breach of immigration laws (and is not an asylum seeker) (‘Withholding Support Provision’). Importantly, the Withholding Support Provision does not prevent a local authority exercising a power or performing a duty where doing so is necessary to avoid a breach of a person’s rights under the Convention.
On 14 August 2008, the Council provided a written assessment to Ms Clue’s lawyers, stating that financial support and assistance would not be provided to Ms Clue under the Children Act. The assessment found that the Council’s refusal to provide support and accommodation would not breach Ms Clue and her children’s rights under the Convention, including:
- the right to respect for private and family life and home under art 8 – because Ms Clue and her children were able to return to Jamaica ‘where they could continue to enjoy a family life’; and
- the right not to be subjected to torture or inhuman or degrading treatment or punishment under art 3 – because the Council was ‘confident that the welfare of children in Jamaica is sufficiently protected’.
Ms Clue applied for judicial review of the Council’s decision and the High Court upheld the challenge. The Council was granted leave to appeal to the Court of Appeal. The Secretary of State was added as an interested party and Shelter UK intervened in the case.
In October 2009, Ms Clue and her family were granted indefinite leave to remain in the UK by the UKBA, but the appeal proceeded because of its significance to future decisions by the Council.
The Court dismissed the appeal and rejected the Council’s human rights assessment in relation to Ms Clue’s request for assistance.
It held that, in determining whether withholding assistance would cause a breach of Ms Clue and her children’s rights under the Convention, the Council should have considered the right to family life and private life as ‘two distinct rights’, with private life encompassing broader considerations such as relationships and social and cultural ties. The Council’s failure to provide support in a way that prevented these social and cultural ties from being broken (by requiring the family to return to Jamaica) would result in a breach of art 8 of the Convention.
Scope of the right to private life
Citing the Grand Chamber of the European Court of Human Rights in Uner v The Netherlands (2007) 45 EHRR 14, the Court held that, in addition to ‘family life’, art 8 of the Convention protects ‘the right to establish and develop relationships with other human beings and the outside world … and can sometimes embrace aspects of an individual’s social identity’. The Court also cited the finding in Uner that the concept of private life encompasses the ‘totality of social ties’ and the expulsion of a settled migrant may therefore constitute an interference with their rights under art 8 ‘regardless of the existence or otherwise of a family life’.
Relevant considerations for local authorities
The Court identified the following features as being key to Ms Clue’s circumstance:
- she was unlawfully present in the UK (within the meaning of the NIA Act);
- she was destitute and would (if not for the Withholding Support Provision), have been eligible for support under the Children Act; and
- she had made an application to the Secretary of State for leave to remain, which expressly or implicitly raised grounds under the Convention.
The Court identified two steps in a local authority’s consideration of the extent to which it is necessary to exercise a power or perform a duty to avoid a breach of a person’s rights under the Convention:
- First, would withholding assistance cause a person to suffer from destitution amounting to a breach of his or her rights under the Convention (including under art 3)? This involves consideration of what other sources of accommodation and support are available to the claimant.
- Second, if adequate assistance is not otherwise available to prevent the claimant’s destitution, is there an impediment to the claimant returning to their country of origin?
The Court stated that, where there is a practical impediment to return (for example, that the person cannot fund their return), it will be open to the local authority to avoid a breach of the person’s rights by funding his or her return (such as flights and short term accommodation).
Where the barrier is legal, in that return would result in a breach of the person’s rights under the Convention, the local authority’s obligations will depend on whether the person has applied for leave to remain in the UK or not.
(a) No application for leave to remain
By way of obiter, the Court stated that, in considering whether art 8 is a barrier to returning a person to their country of origin, the local authority will need to:
- consider whether he or she enjoys a private or family life in the UK under art 8(1); and
- if such a private or family life is enjoyed, consider whether returning the person to their country of origin would interfere with this right.
While it will depend on the facts in each case, the Court stated that, prima facie, requiring the return of a family (particularly where children have spent their formative years in the UK) amounts to interference with their right to private life.
(b) Application for leave to remain
The Court then considered what the obligations of the Council were, given that Ms Clue had made an application for leave to remain in the UK based expressly or implicitly on Convention grounds. In this context, the Court emphasised the distinction between the social services functions of a local authority and the immigration functions of the Secretary of State.
The Court found that the Council’s decision not to provide Ms Clue with support, effectively determined her application for leave to remain by making it impossible for her to stay in the UK. The Court held that, when applying the Withholding Support Provision, a local authority should not consider the merits of an outstanding application for leave to remain, beyond the question of whether the application is ‘obviously hopeless or abusive’. Provided the application is not hopeless or abusive:
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 UK by forfeiting his claim.
Balancing rights against resource constraints
Article 8(2) of the Convention provides that interference by a public authority with a person’s personal or family life will be permissible only where it is ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.
The Council asserted that art 8(2) of the Convention required the Council to weigh Ms Clue and her children’s rights to private and family life against the pressures on its budget by others who needed their rights protected. In response, the Court held that, where a person has an application for leave to remain on foot, the financial considerations of the local authority are irrelevant. The Court noted that, if this was not the case, application of law and policy would be arbitrary and unfair, in that a person’s immigration application could be effectively rejected on the basis of a local authority’s budgetary constraints. The Court made a clear statement:
local authorities may not invoke article 8(2) by reference to budgetary considerations and the rights of others if the effect of so doing will be to require an applicant to return to his country of origin and thereby forfeit his claim for indefinite leave to remain.
If, however, a person does not have an outstanding application for leave to remain, the Court stated that the local authority is entitled to have regard to demands on its budget when identifying whether an interference with a person’s rights to family and private life would be justified and proportionate within the meaning of art 8(2) of the Convention.
The Court acknowledged that the tension in this case was caused in large part by the significant delays in the Secretary of State’s processing of applications for leave to remain and the failure of government to provide local authorities with sufficient resources to support people with pending applications. In response, the Secretary of State and the UKBA both made statements that policy changes had been made so that applicants who were supported by local authorities would be prioritised, having regard to the need to safeguard and promote the welfare of children in the UK.
Relevance to the Victorian Charter
This case is particularly relevant to the scope of the rights to family and privacy under s 13(a) of the Victorian Charter.
Although not identical to the rights under s 13(a) of the Charter, the UK Court’s interpretation of the right to family and private life under art 8 of the Convention as ‘two distinct rights’ is relevant in a Victorian context. In particular, the Court stated that ‘[t]he right to private life entails considerations far wider than the right to family life … private life includes relationships and the social, cultural as well as the family ties that a person forms’. This broad interpretation of the right to private life is particularly relevant to marginalised persons who are disconnected from traditional family networks.
The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/460.html.
Lucy Adams is a lawyer with the PILCH Homeless Persons’ Legal Clinic