M v London Borough of Islington & Anor [2004] EWCA Civ 235

Case No C2/2003/1850[2004] EWCA Civ 235
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 2 April 2004
Strand,
London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE BUXTON
and
LORD JUSTICE MAURICE KAY
Between
MAppellantTHE LONDON BOROUGH OF ISLINGTONRespondentTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Stephen Knafler (instructed by Pierce Glynn for M)Mr Bryan McGuire (instructed by The London Borough of Islington for London Borough of Islington)Ms Kristina Stern (instructed by the Treasury Solicitor) for Interested Party
JudgmentLord Justice Buxton :The facts and issues
[1]The claimant, Mrs M, is a national of Guyana. She came to the UK in 1998 on a visitor’s visa, staying here after that visa expired. It is accepted that both at the time of the hearing before the judge and at the time of the present hearing she was and is unlawfully in this country. She is, however, the subject of current immigration proceedings. An appeal against the Secretary of State’s refusal of her application for indefinite leave to remain was rejected by an Adjudicator on 23 September 2003. She has however been granted permission by the Immigration Appeal Tribunal to appeal against that decision; we understand that the appeal is to be heard on 23 June 2004.[2]That application on Mrs M’s part is largely based on her family circumstances. In November 1999 Mrs M married Mr M, a native of Antigua with indefinite leave to remain in this country, and set up home with him in his council flat in the area of the respondent council, the London Borough of Islington [Islington]. On 17 October 2001 a daughter [the child] was born. By the operation of section 1(1)(b), read with section 50(2), of the British Nationality Act 1981 the child is a British citizen. She was not only born in the United Kingdom, but born there in lawful wedlock to a father who has indefinite leave to remain here.[3]Unfortunately, the marriage did not prosper, and in about August 2002 Mr M left the claimant. The tenancy of the flat was transferred to Mrs M, but she is unable to pay the rent, and has no means of subsistence for herself or the child apart from the provision that Islington has, very properly, made pending the outcome of the present proceedings. As to the husband, we were told from the bar that arrangements have been made for contact between him and the child, arrangements that Mr M has in the main fulfilled.[4]Again very properly, the situation of Mrs M and the child attracted the concern of Islington’s social services department, which embarked upon an assessment of the child’s needs under the provisions of the Children Act 1989. On the basis of that assessment Islington concluded that the needs of the child could be met by providing Mrs M and the child with tickets to enable Mrs M to return to her family in Guyana. That step was not, in itself, outside Islington’s proper powers under the Children Act: see R v Hammersmith & Fulham LBC ex p D [1999] 1 FLR 642, per Kay J. However, it then came to be accepted that, as set out above, Mrs M was unlawfully in the United Kingdom. That was thought by Islington to impact on its Children Act obligations towards the child, by the operation of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 [Schedule 3] and the Witholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 [the Regulations]. I shall have to return to these provisions in much more detail later in the judgment. On the basis of its understanding of them, Islington sent a long and detailed letter to the claimant’s solicitors on 27th March 2003, the salient points of which were:• . Islington maintained its earlier decision “to offer [Mrs M] and [the child] one way plane tickets to Guyana because [the child’s] welfare would be best safeguarded and promoted by being cared for in Guyana where she has a Grandmother, Aunt, Uncle and cousins, and therefore a greater prospect of family support than she has in the UK”• . If Mrs M nonetheless remained in the UK in order to pursue her immigration proceedings, “circumstances could very well arise whereby mother and child might be separated in breach of Article 8 if [Mrs M] remained in this country pursuing your application to remain here without any means of supporting your child. Without deciding what the authority would do in circumstances which have not arisen, there would be a real prospect that the authority would reach a decision that the child had to be taken into care as a means of addressing its [scil., the child’s] needs”.• . Nonetheless, Islington had “not made any decision as to what would happen in the event that the offer was refused even after having been found by the court to have been lawfully made. This is not a case where a decision has been made, still less a threat made, to take [the child] into care. In the event that [Mrs M] refuse[s] to accept the offer made even following court proceedings, the Islington would continue to assess what is in the best interests of [the child] in the light of developing circumstances.”[5]Mrs M has throughout adamantly opposed any return to Guyana either for herself or for the child. In these proceedings she seeks an order quashing the decision to offer tickets to Guyana contained in Islington’s letter of 20 January 2003; and directions that Islington should further assess the needs of Mrs M and the child under section 17 of the Children Act, and pending the completion of that assessment provide Mrs M with accommodation and maintenance.

The legislation

[6]The enquiry starts with Islington’s powers and duties under section 17 of the Children Act. The most immediately relevant provisions are in section 17 (1)-(3), which read: (a). to safeguard and promote the welfare of children within their area who are in need; and, (b). so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. (2). For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2. (3). Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare. There is no dispute that the child in the present case is “in need”.[7]The local authority’s position has however been severely affected by, and these proceedings address, Schedule 3. That is entitled “Withholding and Withdrawal of Support”, and by § 1(1) provides that “A person to whom this paragraph applies shall not be eligible for support or assistance under” and there are then set out a very large number of statutory provisions that otherwise provide health, welfare and housing benefits.

(g) :

“section 17, 23C, 24A or 24B of the Children Act 1989 (welfare and other powers which can be exercised in relation to adults)”
[8]Schedule 3 then goes on to indicate various exceptions to the blanket exclusion of rights under the listed statutes. The exceptions relevant to our case are to be found in §§ 2 and 3: “ 2(1) Paragraph 1 does not prevent the provision of support or assistance-(a) to a British citizen, or(b) to a child. 3. Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of- (a) a person’s Convention rights …” (a) to a British citizen, or (b) to a child.[9]Schedule 3 then goes on to set out the four classes of persons who are by paragraph 1, and subject to the above exceptions, rendered ineligible for the statutory benefits that Schedule 3 addresses, and then makes further provision for the limited amount of assistance that local authorities are permitted to give to persons falling within those categories. Those provisions are important in the determination of this appeal, and need to be set out in full:
“ First class of ineligible person: refugee status abroad (a). has refugee status abroad, or (b). is the dependant of a person who is in the United Kingdom and who has refugee status abroad. (2). For the purposes of this paragraph a person has refugee status abroad if - (a) he does not have the nationality of an EEA State, and (b) the government of an EEA State other than the United Kingdom has determined that he is entitled to protection as a refugee under the Refugee Convention. Second class of ineligible person: citizen of other EEA State (a). has the nationality of an EEA State other than the United Kingdom, or (b). is the dependant of a person who has the nationality of an EEA State other than the United Kingdom. 22. Third class of ineligible person: failed asylum-seeker (a). he was (but is no longer) an asylum-seeker, and (b). he fails to cooperate with removal directions issued in respect of him. (2). Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1). Fourth class of ineligible person: person unlawfully United Kingdom (a). he is in the United Kingdom in breach of the immigration laws within the meaning of section 11, and (b). he is not an asylum-seeker. Travel assistance 8The Secretary of State may make regulations providing for arrangements to be made enabling a person to whom paragraph 1 applies by virtue of paragraph 4 or 5 to leave the United Kingdom. Temporary accommodation 9 (1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person to whom paragraph 1 applies pending the implementation of arrangements made by virtue of paragraph 8. (2). Arrangements for a person by virtue of this paragraph- (a) may be made only if the person has with him a dependant child, and (b) may include arrangements for a dependant child. (a). paragraph 1 applies to him by virtue of paragraph 7, and (b). he has not failed to cooperate with removal directions issues in respect of him. (2). Arrangements for a person by virtue of this paragraph- (a) may be made only if the person has with him a dependant child, and (b) may include arrangements for a dependant child.”
[10]The regulation-making power has been exercised by the Secretary of State by the Regulations. The relevant parts of the Regulations read as follows:
“Power for local authorities to arrange travel and provide accommodation 3 (1) A local authority may make arrangements (“travel arrangements”) enabling a person with refugee status abroad or who is an EEA national to leave the United Kingdom to travel to the relevant EEA State. (2). A local authority may make arrangements for the accommodation of a person in respect of whom travel arrangements have been or are to be made pending the implementation of those arrangements. (3). A local authority may make arrangements for the accommodation of a person unlawfully in the United Kingdom who has not failed to co-operate with removal directions issued in respect of him. (4). Arrangements for a person by virtue of paragraph (2) or (3)- (c) may be made only if the person has with him a dependant child, and (d) may include arrangements for that child Requirements relating to travel and accommodation arrangements 4 (1) Travel arrangements and arrangements for accommodation must be made so as to secure implementation of those arrangements at the lowest practicable cost to the local authority. (2). Subject to the requirements in paragraph (1), travel arrangements made in respect of a person must be made so that the person leaves the United Kingdom as soon as practicable. (3). Travel arrangements and arrangements for accommodation may not include cash payments to a person in respect of whom arrangements are made and must be made in such a way as to prevent the obtaining of services or benefits other than those specified in the arrangements. (4). A local authority must have regard to guidance issued by the Secretary of State in making travel arrangements and arrangements for accommodation.”

The proceedings before Wilson J

[11]It was assumed on all sides before Wilson J, and he accepted, that the issue was to be determined by the construction, or at least the application, of the Regulations. Mrs M’s contention was that the Regulations made it unlawful for Islington to perform its section 17 duty by offering tickets for a return to Guyana. Islington had the power under the Regulations, which in this case it should exercise, to accommodate Mrs M and the child until the outcome of Mrs M’s immigration proceedings was known. Wilson J, at § 45, rejected that contention. He held that if Islington properly concluded that it would safeguard and promote the welfare of the child to return with Mrs M to Guyana, it would not be unlawful for Islington “at least to offer tickets for travel”: which latter, the judge concluded, was all that Islington had so far done. He was fortified in that view by his conclusion, at § 36, that it would not be lawful under the Regulations for a local authority to offer a person in the fourth class, a person unlawfully in the United Kingdom, not travel but accommodation for any more than a short period pending removal, such as the 21 days that Islington had originally offered to Mrs M.[12]The judge however went on to criticise Islington’s procedure in coming to the decision that an offer of travel would meet Islington’s obligations. He drew attention to §3 of Schedule 3, set out above, which permitted the exercise of a section 17 power if such was necessary to avoid a breach of a person’s Convention rights. In the judge’s view, the assessment conducted by Islington had not given attention to the mutual rights of the child and of Mr M for family contact with each other; and had inadequately investigated the actual prospects for the child’s welfare were she to be returned to Guyana. He therefore concluded, at §59:
“For each of those two reasons Islington’s assessment was flawed. Its decision to offer tickets under s.17 must be quashed and Islington must reconsider what decision to make about any exercise of its powers for the benefit of the child, including in relation to the claimant, under that section.”
[13]Mrs M does not of course quarrel with that conclusion so far as it goes; but by this appeal she contends that the judge should have gone considerably further. As the argument in the appeal developed, it became clear that the parties were principally concerned to have guidance as to how Islington should perform the reconsideration ordered by Wilson J. The precise terms of the relief sought may not therefore be of central importance. However, after discussion with Mr Knafler, for Mrs M, I think that the substance of Mrs M’s case can be expressed in terms of a declaration that Schedule 3 and the Regulations permit local authorities to provide accommodation to persons unlawfully in the United Kingdom who have dependent children, and require that power to be performed when the family is destitute and has no other recourse. As a result, it was not open to Islington, and until failure to comply with removal directions is not open to Islington, to offer tickets to the home country against the wishes of Mrs M.[14]This issue, and the statutory background against which it is ventilated, has given rise to a series of problems, going some way beyond the case as it appeared before the judge, and all of which have been explored before us with considerable force and subtlety. I have concluded that the judge was correct in remitting the case to Islington. However, that conclusion has to be reached through a detailed examination of the statutory provisions with which those working in this difficult field now have to wrestle, which in my view impose a scheme somewhat different from that which was debated before the judge. And that examination involves the resolution of a number of essentially preliminary points that I will address first. These are: the ambit of § 1(1)(g) of Schedule 3; the respective roles of the Secretary of State and of the local authority; and position of the child as a British citizen.

The ambit of §1(1)(g) of Schedule 3

(g) of Schedule 3

[15]It was assumed without question before the judge, and

the judge accepted, that the issue for him was as set out in §1 of his judgment:

“What powers do local authorities now have to provide accommodation for an adult who, not being an asylum-seeker, is unlawfully present in the United Kingdom and who is caring for a child?”
[16]I was initially concerned, and still am concerned, by this formulation. The local authority only becomes involved, at least in the terms of this case, because it is confronted by a child in need. It is accepted in the circumstances of this case that its powers, either original or as modified by Schedule 3 and the Regulations, can only be exercised in the context of the interests of the child. When the judge ordered Islington to reconsider its decision, at least in relation to conditions in Guyana he did so because Islington had not sufficiently considered whether to live there would safeguard and promote the child’s welfare. Save as it impacted upon the welfare of the child, the welfare of the mother would be an irrelevant and unlawful consideration for Islington to take into account. Paragraph 1(1)(g) of Schedule 3 addresses those cases where under Children Act provisions support or assistance “can” be provided to an adult: either in his capacity as such, as a person formerly in care, under ss 23C, 24A and 24B; or as part of the provision of services to the child’s family or a member of it under section 17(3), though always in such case with a view to safeguarding and promoting the child’s welfare. But why should it be assumed in a case such as the present, where as a matter of fact the child cannot be accommodated without accommodating the mother, that the disqualification of the mother from any assistance under the Children Act must by the same token deprive the child of the assistance to which she is entitled under section 17?[17]In our case, Mrs M is not eligible for support or assistance under welfare powers that can be exercised in relation to adults under section 17 of the Children Act because she is a person in the fourth class, unlawfully in the United Kingdom. That proposition says nothing, as a matter of law, about the provision of support or assistance to the child. However, it is contended that if the local authority performs its duty by accommodating the child, it will thereby unavoidably break its duty under §1 of Schedule 3 of witholding accommodation from the mother: because in practice, bearing in mind the local authority’s duty under section 17(1)(b) to promote the upbringing of children by their families, the child’s accommodation will be with her mother. That would seem on its face to be inconsistent with § 2(1)(a) and (b) of Schedule 3. Paragraph 1 does not prevent the provision of support or assistance to a British citizen or to a child. But in our case, that is exactly what §1 appears to do. The daughter’s status as a British citizen, with a right to remain in this country, is completely ignored. Her status as a child does reappear in the equation under the accommodation provisions of §10 of Schedule 3 and Regulation 3(3). That, however, is not in her own right, but as the dependent child upon whom the mother’s rights in turn depend. And she serves that function not because she is a child in need, owed duties under the Children Act, but because she is dependent on the person who (unlike herself) is unlawfully in the United Kingdom: in just the same way, but only in the same way, as for instance the presence of a dependent child would activate the provisions of §§ 9 and 10 of Schedule 3 in the case of a person rendered ineligible by § 1(1)(a) of Schedule 3 for the provision of accommodation in case of illness under section 21 of the National Assistance Act 1948.[18]The approach adopted by the judge, and by all counsel before him, therefore produces some surprising results. In particular, although the point of departure is the needs of the child, the duty of the local authority to provide for those needs depends on whether the child happens to live in a household headed by a person falling into one of the ineligible categories in Schedule 3. And the protection of British citizens from the removal of services under Schedule 3 depends, in the case of a child in need, not on whether that child is a British citizen, but on whether the head of the household in which the child lives is a British citizen. I have, however, been persuaded by the submissions of Mr McGuire (which it is fair to say were not strenuously opposed by Mr Knafler) that that is indeed what this legislation provides.[19]That is essentially because the reality will often or usually be that services to protect the child will be provided, as in the present case, by providing services to the child’s family or at least to the child’s custodial parent. That is what is envisaged by section 17(1)(b), read with section 17(3), of the Children Act. Paragraph 1(1)(g) of Schedule 3 must, therefore, be read at least in part as addressing that case; and thus as providing that where a Children Act power is exercised through assistance to an adult, the power, even though it is a power to assist the child, is taken away if the adult in question falls within one of the ineligible classes. I say nothing as to the policy that that provision implements. I do however accept that the provision indeed operates in the way that lies behind the judge’s formulation, as set out in § 14 above.

The role of the Secretary of State and of the local authority

[20]Immigration policy is the concern of the Secretary of State. Welfare provision is in the main the concern of the local authorities. That not only reflects the constitutional roles of the two parties, but also the relative skills that they have at their disposal, as Hale LJ (as she then was) expounded in her seminal judgment in R v Wandsworth LBC ex p O [2000] 1 WLR 2359 at p 2557C-E.[21]Schedule 3 is an instrument of the Secretary of State’s immigration control policy. That is made plain in evidence before the court from the Director of the International Policy Directorate, Immigration and Nationality Directorate, of the Home Office. However, the machinery adopted to implement that policy to some extent disturbs the constitutional balance referred to in §20 above. In the first and second “ineligible” classes under Schedule 3 (persons with refugee status in an EEA state or EEA nationals) the local authority by Regulation 3(1) “may” make “travel arrangements” for that person’s return to the relevant EEA state. Whether in such circumstances the local authority is obliged to make such arrangements remains obscure. The implication must however be that local authorities are expected to act to further the national policy referred to by the Director. By contrast, the third ineligible class, failed asylum-seekers, remains the responsibility of the Secretary of State. The extent of the local authority’s powers and obligations towards the fourth class, persons unlawfully in the United Kingdom, is the subject of this appeal.[22]The construction of Schedule 3 and, in particular, of the Regulations therefore has to be undertaken against the background of the scheme that the legislation promotes. It is also necessary to remember that although part of the scheme envisages the local authority providing persons affected by Schedule 3 with the means to leave the United Kingdom, immigration control as such remains in the hands of the Secretary of State. Decisions as to immigration status are therefore for the Secretary of State and not for the local authority.

British citizenship

[23]As a British citizen the child enjoys, by section 2(1)(a) of the Immigration Act 1971, the right of abode in the United Kingdom. By section 1(1) of that same Act “All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and come and go into and from, the United Kingdom without let or hindrance” That proud statement seems plainly to say, and subject to further discussion below, that immigration controls simply do not apply to a British citizen, and he cannot be expelled against his will.[24]We were however told on behalf of the Secretary of State that he has power to remove from the United Kingdom the custodial parent of a British citizen, even though the practical result of that step would be the forcible removal of the British citizen from her country of citizenship. The only controlling factor so far as the British citizen was concerned was whether that step would infringe her rights under article 8 of the ECHR. The child’s citizenship would be a factor to be put into that balance. Two comments are necessary. First, it is established Convention jurisprudence that article 8 (nor any other article of the ECHR) does not create a direct right to enter or remain in any particular country: see for instance Poku v United Kingdom (1996) EHRR CD 94 at 97, cited with approval by the Master of the Rolls in Mahmood [2001] UKHRR 307[47]. It is therefore difficult to see how the child’s right of abode could play an independent role in any article 8 assessment. Second if (as Islington concluded in the present case) family life can be reproduced in the country of removal, then it is difficult to see how the case could fall under article 8 at all: because, as made clear in Mahmood at § 55(3), article 8 creates no right to enjoy family life in one country rather than another.[25]The issue of the child’s British citizenship, which I find one of some considerable difficulty, was not confronted in the proceedings below, so we unfortunately do not have the benefit of the judge’s view upon it. Nor does it seem to be addressed in any English authority. Ms Stern showed us the judgment of this court in Samaroo [2001] EWCA Civ 1139, where at §4 the court mentioned, apparently with approval, the Secretary of State’s inclusion within the “compassionate circumstances” pointing against the deportation of Mr Samaroo, a convicted drug dealer, “the existence of [his son] and his age [nine years] and the fact that he is a British citizen with his own independent right to live here and his relationship to his father” In that case, however, the article 8 rights under consideration were those of the father, not those of the son; and there was no suggestion that, unlike in our case, the inevitable effect of the expulsion of the father would be the expulsion of the son in his company.[26]This issue was, however, addressed in the Supreme Court of the Irish Republic in Lobe v Minister for Justice [2003] IESC 3 where, similarly to our case, non-national parents of an infant child born in Ireland claimed the right to remain in Ireland with their child as an Irish citizen. In the majority judgment Keane CJ held that the child did not have an unqualified right to reside in the State [§17]. Rather, the right of a citizen was to choose whether or not to reside in the State. Infants were incapable of exercising that or any choice, so the right “may reasonably be regarded as a right which does not vest in them until they reach an age at which they are capable of exercising it” [§35]. In the meantime, any decision on the part of the child had to be taken by its parents, who simply were unable to acquire for themselves a right to remain indefinitely in the State by purporting to make that choice on behalf of their infant child [§40]. In reaching that conclusion His Honour was strongly influenced by United States authority, that similarly regarded the right of a US citizen as being to reside where he chose: so the right did not attach to a minor who was fortuitously born in the USA through the choice of his parents, not of himself, to reside there.[27]If that authority can be applied in our case, then the status of the child as a British citizen becomes effectively irrelevant. I would wish to approach that proposition with caution. It would appear that the courts in Ireland and the USA regarded the effect of citizenship with some reserve because that status was acquired by the simple fact of being born in the country. That is certainly the case under section 6 of the Irish Nationality and Citizenship Act 1956, cited by Keane CJ at § 28 of his judgment. The child in our case has however acquired citizenship not simply by birth, but by a deliberate Parliamentary decision expressed in the British Nationality Act 1981. The child is a British citizen because she was not only born here, but born to a parent falling into a carefully limited class: see § 2 above. That careful conferment of citizenship is to be contrasted with the somewhat adventitious acquisition of citizenship of the Irish Republic that troubled the court in Lobe. Second, there does not appear to be in the law of either the Irish Republic or the United States the strong and general statement of freedom to live in the United Kingdom that is to be found in section 1(1) of the Immigration Act 1971: see § 21 above. It is not immediately obvious that that right should be construed simply as a right to choose, not available to a person until he reaches years of discretion.[28]In my view, therefore, the implications of the child’s British citizenship need further exploration. The immigration status of Mrs M is a matter for the Secretary of State. In the current proceedings referred to in §1 above the implications of the child’s citizenship do not seem to have been addressed, a matter to which Mrs M’s advisers may wish to give attention before the case is heard by the Immigration Appeal Tribunal. However, the issue also impacts on how Islington should perform whatever functions are conferred on it.[29]Even if we accept as valid for the United Kingdom the analysis of citizenship in terms of a right to choose that was adopted in Lobe, I am very doubtful whether it is open to a local authority, which has no powers of immigration control, effectively to force upon a British citizen a decision not to assert the right given her by section 2 (1) (a) of the Immigration Act. That in my view was the effect of Islington’s letter of 21 March 2003, summarised in §4 above, carefully worded though it was. The offer was of tickets. Although no decision had been made as to what would be done if the offer were refused, the reference to the “real prospect” of the child being taken into care if the mother remained in the UK to pursue her immigration claim; and the prospect of no other support being available for the mother herself; could only in the eyes of Mrs M point strongly in the direction of accepting the offer.[30]In the event, and for reasons that I shall shortly demonstrate, I have reached the conclusion that such power as Islington may have to offer tickets is, as the judge held, severely circumscribed by the rights of various parties under the ECHR. But if it were to be concluded that the power could be exercised without infringing those rights, then I do not think that it would be open to Islington to exercise it in a way that encourages or in practice enforces the expulsion of the child before the effect of her citizenship on the child’s immigration status has been decided by the proper authority for that purpose, the Immigration Appeal Tribunal. The powers and obligations of Islington.[31]On this aspect of the case I have the misfortune to differ in an important respect from the view of my Lords, whose judgments I have had the benefit of reading in draft. The remission of the case to Islington must therefore take place in the terms that they have determined. I would however venture to continue to set out my own view of how the case should be resolved, and in the course of doing so to indicate why I cannot adopt the disposal of it that appeals to my Lords.[32]It will be convenient if I first summarise my own conclusions. i) Islington only has powers under the Children Act if the application to Mrs M’s case of Schedule 3 is excluded by §3 thereof, avoidance of a breach of a person’s Convention rights. ii) If Schedule 3 does apply to Mrs M’s case, it operates as a complete code, separate from the Children Act iii) Under the code, there is no power to make travel arrangements in respect of a person in the fourth class of ineligible persons iv) In the case of such a person, the only power is to provide accommodation, for a very limited period v) But in the present case, serious consideration must be given to whether the operation of Schedule 3 is excluded by the need to avoid a breach of the Convention rights of all of the child, Mrs M and Mr M vi) That consideration involves an assessment by Islington of what Children Act powers, if any, are necessary to be exercised to avoid such a breach. Guidance is given as to the factors that Islington may think should be taken into account. I will first indicate what will be the position if Islington concludes that Schedule 3 does apply to this case. I then consider the issues arising in relation to the ECHR. The local authority’s powers under the Regulations.[33]For the reasons already explained, the local authority only has power under the Regulations to make “travel arrangements” in respect of the first and second ineligible classes: see Regulation 3(1). Where such arrangements have been or are to be made there is a further power to provide accommodation, pending travel: Regulation 3(2).[34]A good deal of confusion has been caused in this case by Islington’s decision to continue its earlier, Children Act, offer of tickets: see § 4 above. On the construction of Schedule 3 and the Regulations for which Islington contends, and which as indicated in § 20 above I accept, Islington no longer had power to offer tickets under the Children Act, because Mrs M was ineligible for support or assistance under the Children Act. Islington’s powers were strictly limited to what was allowed to it under Schedule 3 and the Regulations, in substitution for Children Act support, by reason of Mrs M having a dependent child. Those powers do not include the making of travel arrangements in the case of a person unlawfully in the United Kingdom. And there is a very good reason for that, in that a local authority is not qualified to determine contentious matters relating to immigration: see the observations of Hale LJ (as she then was) cited in §20 above.[35]In the case of Mrs M, therefore, Islington’s power is limited to that in Regulation 3(3). Provided, as in this case, there is a dependent child, “A local authority may make arrangements for the accommodation of a person unlawfully in the United Kingdom who has not failed to co-operate with removal directions in respect of him” Wilson J however held, at §36, that that apparently general power was severely circumscribed by Guidance issued by the Secretary of State. I respectfully agree in broad terms with the view that the judge took of the meaning and implications of that Guidance. My Lords do not. I must first therefore explain my own opinion, and then indicate how this difference affects the outcome of the appeal.

The Secretary of State’s Guidance

[36]Regulation 4(4) provides that “A local authority must have regard to guidance issued by the Secretary of State in making travel arrangements and arrangements for accommodation.” The Secretary of State issued such Guidance in December 2002. As Wilson J pointed out, one of the problems in understanding the Guidance is that it seeks to apply the same regime and criteria to the two different cases identified in §§ 32-33 above; and that even though local authorities are expressly reminded in §27 of the Guidance that “No arrangements may be made in respect of failed asylum seekers and those unlawfully in the UK-responsibility for making travel arrangements for these groups of person rests with the Home Office Immigration and Nationality Directorate” Put shortly, the Guidance requires all offers of accommodation to be for a short period, no more than ten days from the time at which the family first presented for assistance. On the basis of that Guidance, the judge found that the 21 days offered by Islington was the very limit of what could lawfully be done.[37]The difficulty of the approach in the Guidance is that it takes as the paradigm case the offering of accommodation as an adjunct to the making of travel arrangements. In that case, control over when the subjects should leave is in the hands of the local authority that is making the travel arrangements. It is therefore understandable that, even if only to encourage promptitude in the making and enforcing of those arrangements, the local authority should be limited in the length of time for which it can accommodate pending departure. But where, as under Regulation 3(3), the local authority (contrary to Islington’s offer in our case) has no power to make travel arrangements, the date of departure of the person who has not yet failed to co-operate with removal directions is not within the control of the local authority, and may well be, as in our case, distant and uncertain.[38]In those circumstances, I have to say that it makes no sense to limit the local authority, irrespective of the needs of the individuals concerned, to a very short period of accommodation. The present case demonstrates that to the full. Islington made its decision on 27 March 2003, offering 21 days accommodation “to provide you with the opportunity to make travel arrangements”. For the reasons set out in §30 above, the lawfulness of that step in the present case must be in serious question. Nor had removal directions then been issued by the Secretary of State, nor could their issue be contemplated before the termination of the appeal process. Mrs M’s appeal against refusal of indefinite leave to remain had then already stood unheard for thirteen months, and was not resolved until September 2003. An appeal against that decision, brought with the permission of the Immigration Appeal Tribunal, is not to be heard until June 2004. Mrs M and the child will therefore be in the United Kingdom for at the very least fifteen months after Islington’s decision. To offer accommodation, but only for the first three weeks of that period, cannot be an appropriate response to the condition of Mrs M and of the child.[39]That, however, is what the Guidance plainly requires. It re-emphasises that it indeed addresses non-EEA cases, that is, ineligibility class four cases where removal directions have not been disobeyed, by making a distinction between them and EEA cases in its §32. We were taken to various authorities limiting the effect of “guidance” and of an obligation “to have regard to”. Thus Roskill LJ in Laker Airways v Department of Trade [1977] QB 643 at p 714C said that “guidance is assistance in reaching a decision proffered to him who has to make the decision, but guidance does not compel any particular decision”; Lord Denning in De Falco v Crawley BC [1980] QB 460 at p 478A said that “the council of course had to have regard to the code: see section 12 of the statute; but, having done so, they could depart from it if they thought fit”. Those observations however related to latitude to depart from guidance when it did not fit the obvious statutory needs of a particular case. They do not give the local authority a licence, and much less impose on it a duty, to depart from a general policy set out in the guidance just because it appears, as this policy appears, to be unreasonable.[40]Nor, I have to say with regret, can I agree with Maurice Kay LJ’s view that the reference in the Guidance to a limit on the period of accommodation being “preferable” entitles the local authority to decide that it should not apply in a case such as that of Mrs M. Although the implications of so doing do not seem to have been properly thought out, there is no doubt that, for the reasons given at the beginning of §39 above, persons in the same class as Mrs M are intended to be covered by the Guidance. She may be different from some others in that class, in that she is engaged in active appeal proceedings; but in all category four cases there is likely to be uncertainty about removal arrangements, extending over a substantially longer period than the 10 days from the date the family first presented for support that is the criterion laid down by §32 of the Guidance. Any limited licence to depart from guidance in a special case, and any cautious expression of the guidance in terms of that period of 10 days being preferable, cannot therefore be used to supply a much longer period effectively to the whole class of non-EEA cases.[41]Nor can it be said that the Guidance is plainly inconsistent with the statutory powers. The regulation-making power is referred to in Schedule 3 under the heading of “temporary” accommodation. I would not regard that fact, if it stood on its own, as particularly compelling, either as an aid to construction or as determining what is meant by “temporary”. But it can at least be used to demonstrate that the author of the Guidance did not plainly depart from his statutory powers. And, indeed, this point goes further, because the Schedule and the Regulations, with which the Guidance has to be construed, are all about the witholding and withdrawal of support. It would be odd if category four cases, having been removed from Children Act support by Schedule 3, were then reinstated into a substantial period of support by the Guidance.[42]Nor is it possible to revert to Islington’s obligations under section 17. The whole point of Schedule 3 is to substitute the Schedule 3 obligations, limited as they are, for the original Children Act duties. And that is why no assistance can be gained from R v Wandsworth LBC ex p O [2000] 1 WLR 2539, where an exceptionally strong constitution of this court held that the use, or rather the witholding, of welfare provision could not be used to implement immigration policy without clear statutory authority. That authority has now been provided by Parliament in the 2002 Act.[43]It is for these reasons also that, with regret, I cannot adopt the approach of Waller LJ, that the Guidance permits the provision of accommodation for a period until travel arrangements are made by the Home Office. I would venture in that regard to mention two further considerations. First, §2 of the Guidance indicates that the object is to provide to category four cases “similar” accommodation to that envisaged in EEA cases. It would be odd if later in the Guidance a completely different regime were provided for category four. Second, I revert to the specific starting-point, the date of presentation for support, that is given for all cases in §32 of the Guidance (see also § 40 above). It is very unlikely that there is nonetheless intended to be a different and unstated starting-point, whatever date upon which removal directions are finally made, in category four cases.

The effect of my understanding of the Guidance

[44]The Guidance, if it does indeed treat all three ineligible cases together, makes clear that the very limited, in effect non-existent, accommodation that is all that Islington can offer is intended, as in the EEA cases, to encourage or force Mrs M to leave the UK; even though, paradoxically, in her case Islington has no power to make travel arrangements. It is therefore necessary to consider whether that will lead to a breach of Convention rights; because, if it will, §3 of Schedule 3 requires reversion to the original Children Act powers.

Breach of a person’s Convention rights

[45]I entirely accept Ms Stern’s submission, countering an ill-considered suggestion on my own part, that “a” person in §3 means any person, and not that person. So even though the disqualification from Children Act assistance turns on the status of Mrs M and not on that of the child (see §19 above), the lifting of that disqualification can address the position of the child, or indeed of her father.[46]In §§ 49-59 of his judgment Wilson J gave cogent reasons why the Convention rights at least under article 8 of all of the child, Mrs M and Mr M are in issue in this case. All of those rights would be likely to be seriously affected if all that Islington could do were to exercise its powers under the Regulations, with the effects summarised in §40 above. First, Mrs M is adamant that she will not leave the UK. Absent removal directions, she cannot be forced to do so; and since, as we have seen, Islington cannot fund her travel arrangements under Schedule 3 it is difficult to see how a destitute woman could leave, let alone find her way back to Guyana, even if she wanted to do so. Islington made it clear in its letter of 21 March 2003 that that would raise “a real prospect” of the child being taken into care. I for my part would find it difficult not to see an offer of tickets with an alternative of no accommodation (made not for social reasons but in an attempt to enforce immigration control other than by the issuing of removal directions) as an unjustifiable interference with the article 8 rights both of Mrs M and of the child. Second, as the judge pointed out, whilst Mrs M and the child may be able to maintain family life in Guyana, if the object of removing them there succeeds, there has to be substantial certainty on that point before removal can confidently be said not to raise issues under article 8. Third, it would be quite unreasonable to expect Mr M, settled in the United Kingdom and separated from Mrs M, to follow her to Guyana. Depending on the strength of the bond between Mr M and the child, the article 8 rights of both of them would be threatened by the prospect of the child’s removal to Guyana.[47]While this would be in the first instance a matter for Islington, it might have found it difficult not to conclude that, on any view of Mrs M’s possible reaction, the limitation of its powers to those under the Regulations will involve interference with the parties’ Convention rights. I should also make plain that, in assessing any future decision that Islington might have made, the criterion would not simply be that of Wednesbury unreasonableness. The test of necessity under §3 of Schedule 3 imposes a condition precedent to the exercise of a statutory function, under the (restored) Children Act powers. That test must be applied according to objective criteria, which the court retains the power to review.

Islington’s powers under the Children Act

[48]On the assumption that action constrained by Schedule 3 is seen as infringing Convention rights, Islington would become again free to, and would be obliged to, exercise its powers under the Children Act. That was what the judge saw Islington as doing in the offer of tickets that it had made to Mrs M.[49]Islington would have to bear three considerations in mind before it could lawfully discharge its Children Act duty by an offer of tickets rather than by providing support, including accommodation, in the United Kingdom. First, it would have to be confident that the child will cease to be “in need” if removed to Guyana. Wilson J, who has unrivalled experience in these matters, pointed to the detailed and circumstantial enquiry needed in this case, none of which appears to have taken place. Second, the various parties’ Convention rights must be respected in any action taken under the Children Act, just as they are relevant to putative action under the Regulations. The considerations set out in §46 above remain directly in point. Here again, because what is in issue is the state’s positive obligation under article 8 of the Convention to protect family life (see for instance Marckx v Belgium Case 6833/74 at §31), Islington would have to act in the light of that obligation, and not simply reach a decision that is not Wednesbury unreasonable. Third, Islington would have to bear in mind the implications of seeking to remove a British citizen from the United Kingdom, as indicated in §30 above.

Powers and duties

[50]It will be recalled (see §13 above) that counsel for Mrs M argued that there was a general power to provide accommodation under Schedule 3, and that in the circumstances of Mrs M’s case there was a duty on Islington to exercise that power. I have found that the power under Schedule 3 is far more circumscribed: see §38 above. And, even if that were not the case, there is simply no justification for translating whatever power is conferred by Schedule 3 into a duty. For that to be the case, Schedule 3 would at least have to impose obligations as to the general welfare of the subject. That is the last thing that it does.[51]By contrast, Islington does have a general duty under the Children Act to provide for children in need, such as the child in this case. It must exercise those powers with that end in mind, as well as with regard to its duties under the Convention.

Disposal

[52]Wilson J concluded that Islington’s decision, whether taken under Children Act powers or under Schedule 3, had to be reconsidered in the light of ECHR obligations. I have reached the same conclusion by a slightly different route. If the decision were my own I would allow the appeal only to the extent of varying the judge’s order to provide that the case must be reconsidered by Islington in the light of the guidance given in §§ 46-49 above. In that process, the criticism of the consideration of the case so far that is set out in §§ 47-58 of the judge’s judgment would have to be borne very carefully in mind. However, since that conclusion is based upon a view of Islington’s powers and duties that is not that of the majority of the court, the appeal must be determined according to the order proposed by my Lords.

Lord Justice Maurice Kay:

[53]I agree with what Buxton LJ has said about the import of the ECHR in the circumstances of this case. However, I take a different view of the power of Islington to provide accommodation pursuant to Regulation 3(3).[54]The legislative sequence is as follows. By section 54 and Schedule 3 paragraph 1(1)(g) of the Nationality, Immigration and Asylum Act 2002 eligibility for support or assistance under section 17 of the Children Act 1989 is withdrawn. Nevertheless, the subsequent provisions of Schedule 3 provide for exceptions. I adopt the reasoning of Buxton LJ in relation to the exceptions set out in paragraphs 2 and 3. Paragraph 7 provides that paragraph 1 applies to a person – that is, renders him ineligible – if he is in the United Kingdom in breach of the immigration laws and he is not an asylum seeker. It therefore applies to M. However, it is not the end of the story. By paragraph 10 the Secretary of State is empowered to make regulations providing for arrangements to be made for the accommodation of a person to whom paragraph 7 applies if he has not failed to comply with removal directions issued in respect of him, provided that he has with him a dependant child, in which case the arrangements may include arrangements for that child. Thus, the position of M is precisely one of those contemplated by the regulation empowerment.[55]Regulation 3(1) and (2) do not apply to M as they relate only to persons with refugee status abroad and EEA nationals. The crucial provision is therefore Regulation 3(3) which provides that a local authority “may make arrangements for the accommodation of a person unlawfully in the United Kingdom who has not failed to cooperate with removal directions issued in respect of him” provided that (Regulation 3 (4)) he has with him a dependant child. If the Regulations stopped there, it would be beyond dispute that Islington would have the power to provide accommodation in M’s case. However, Regulation 4 goes on to provide that “(1) …..arrangements for accommodation must be made so as to secure implementation of those arrangements at the lowest practicable cost to the local authority……. (4) A local authority must have regard to guidance issued by the Secretary of State in making…..arrangements for accommodation.” I do not consider that the Regulation 4(1) imposes a temporal restriction. It simply requires economy in the context of whatever the appropriate duration may be.[56]It is the published Guidance which persuaded Wilson J and Buxton LJ to conclude that Islington has no power to make arrangements for accommodation for more than two or three weeks. I therefore explain why I disagree with that conclusion.[57]Although paragraph 10 of Schedule 3 (the power to make regulations) and the title of the Regulations themselves refer to temporary accommodation, I do not think that that points to an unduly short period. It is common knowledge that the categorisation of something as “temporary” in the context of immigration law is not synonymous with duration of extreme brevity. It means no more than “lacking permanence”. Some insight into the purpose of this power to provide temporary accommodation can be obtained from the Introduction to the Guidance, which states that local authorities will be able to provide such accommodation to those unlawfully in the United Kingdom “whilst they await removal directions from the Immigration Service”. Again it is common knowledge, and was in 2002, that there are many circumstances in which that wait may last for months or even years. The case of M is an obvious example. She is pursuing an appeal against the refusal to grant her indefinite leave to remain. Her case is not obviously hopeless or abusive. The Secretary of State did not certify it so as to curtail her appeal rights and the Immigration Appeal Tribunal has given her leave to appeal, thereby accepting that her appeal has a real prospect of success. Whilst her appeal is pending, she must remain in this country because the appeal would be treated as abandoned if she left the country (section 104 of the 2002 Act). In all these circumstances, there is no question of the Secretary of State issuing removal directions unless and until the appeal process has been exhausted and has ended in failure.[58]The part of the Guidance which has a part to play in these circumstances is under the heading of the grant of “temporary short – term accommodation”. It is a fact that neither the Act nor the Regulations use the expression “short – term”. The crucial paragraph is paragraph 32:
“For those persons returning to EEA Member States, it is preferable if accommodation does not continue for a period of more that a further 5 days from the date the family first presented for support or assistance to the local authority. For those returning to other countries, it is preferable if accommodation does not continue for a period of more than a further 10 days from the date the family first presented for support or assistance to the local authority.”
Wilson J and Buxton LJ have concluded that, because of paragraph 32, Islington has no power to provide accommodation for more than 2 or 3 weeks, even though, in the words of Buxton LJ (para 37), “it makes no sense to limit the local authority, irrespective of the needs of the individual concerned, to a very short period of accommodation”.[59]In these proceedings, there is no challenge to the lawfulness of the Guidance. We have to approach it on the basis that, to comply with Regulation 4(4), Islington must “have regard” to it. In my judgment, it would be consistent with the authorities referred to in paragraph 38 of Buxton LJ’s judgment for Islington to conclude that, notwithstanding that it is “preferable” to limit the provision of accommodation to the sort of period referred to in paragraph 32, it would be inappropriate to do so in the circumstances of this case. If the wait is likely to be measured in months, there would be no point in a provision which exists for the benefit of children being limited to a period of days. I base this conclusion on the fact that paragraph 32 is expressed in the language of preference and must be considered in the context of the stated purpose of providing accommodation “whilst they await removal directions”. I also agree with Waller LJ, whose judgment I have seen in draft, that the words “for those returning to other countries” in paragraph 32 of the Guidance provide further support for this conclusion.[60]I emphasise that, on this analysis, Islington has a statutory power rather than a duty to provide accommodation. I accept that there can be circumstances in which any proper consideration of the exercise of a power can only result in a positive conclusion but I stop short of saying that this is necessarily such a case. It is a matter for Islington to consider in the course of the reconsideration which is to take place. For my part, I would hesitate before granting a declaration of the width suggested by Mr. Knafler.

Lord Justice Waller:

[62]I have read in draft the judgments of Buxton LJ and Maurice Kay LJ. There is a point on which they disagree. That point is the very point on which Sedley LJ gave permission to appeal, and is of general importance to Local Authorities who have to consider how they should react to persons in the position of Mrs M of whom there may be many. She is a mother with a child who without assistance would be destitute; she is also unlawfully present in the United Kingdom but exercising her rights of appeal challenging that unlawfulness a process which for reasons not within her control is taking a very substantial period. If Islington had been free to exercise their powers under Section 17 and other sections of the Children Act they would, as indeed they first did, have offered tickets to Mrs M to enable her to fly to Guyana. The subtext of such an offer would have been that if she did not accept the offer, consideration would have been given to taking her child into care. The Court of Appeal in R on the application of G v Barnet LBC [2001] 4 CCLR 128 upheld as lawful the decision of the local authority in that case to provide tickets for a child and its parent to return together abroad, in circumstances where the Local Authority had concluded that the provision of such tickets did “safeguard and promote the child’s welfare”.[63]What was intended to be the effect of the bringing into force of Schedule 3 of the 2002 Act on persons such as Mrs M and her child? That Schedule had its effect by virtue of section 54. As Wilson J points out Section 54 describes Schedule 3 in these terms “which makes provision for support to be withheld or withdrawn in certain circumstances”. Schedule 3 applied to four categories of adult persons who were not British citizens (para 2(1)(a) and (b)), and provided that such persons should not be eligible for support or assistance under, among other provisions, section 17 of the Children Act (para 1(g)).[64]Mrs M was not a British Citizen or a child and falls by virtue of paragraph 7 within the fourth category of ineligible persons being a “person unlawfully in the United Kingdom”, and, as Buxton LJ has concluded it is clear that the starting point for consideration of the effect of the remainder of Schedule 3 is that Islington’s powers under Section 17 and in particular the powers under Section 17(3) which might have been exercised in favour of Mrs M for the child’s benefit were withdrawn.[65]But as Paragraph 2(1)(c) makes clear, paragraph 1 does not prevent the provision of support or assistance “under or by virtue of regulations made under paragraph 8, 9, or 10..”. Furthermore, paragraph 3 makes clear that paragraph 1 “does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of … a person’s Convention rights…”.[66]Paragraphs 8 and 9 empower the making of regulations relating to the first two categories of ineligible persons (EEA classes). It is regulation 10 which is critical so far as considering the position of Mrs M is concerned. It empowers the making of regulations “providing for arrangements to be made for the accommodation of a person if :–(a) Paragraph 1 applies to him by virtue of paragraph 7, and(b) he has not failed to cooperate with removal directions issued in respect of him.”[67]Mrs M was and is of course both a person ineligible by virtue of paragraph 7 and has not failed to cooperate with removal directions. There is nothing in paragraph 10 which gives any indication as to the duration for which the regulations should provide for accommodation to be provided, save that non-compliance with “removal directions” places a long stop on the power to arrange accommodation.[68]Paragraph 11 of Schedule 3 sets out that for which the regulations may provide, and that includes at (e) that they may “require a local authority or another person to have regard to guidance issued by the Secretary of State in making arrangements”.[69]Pursuant to his powers under paragraphs 8, 9,10 and other provisions irrelevant for present purposes, the Secretary of State made the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002. Regulation 3 dealt first with the EEA classes of ineligible persons empowering a local authority to make travel arrangements for such persons and the making of arrangements for accommodation in respect of whom travel arrangements “have been or are to be made pending implementation of those arrangements” [regulation 3(1) and (2)]. Regulation 3 dealt second with persons unlawfully in the United Kingdom empowering a local authority to make arrangements for the “accommodation of a person unlawfully in the United Kingdom who has not failed to cooperate with removal directions issued in respect of him.” [Regulation 3(3)]. Arrangements could only be made for accommodation in either case if the person had with them a “dependant child” [Regulation 3(4)]. In Regulation 3 there was no indication as to the speed with which travel arrangements had to be made or the duration of any accommodation.[70]Regulation 4 dealt with “Requirements relating to travel and accommodation arrangements”. Regulation 4(1) provided that both travel and accommodation must be at lowest practicable cost; Regulation 4(2) provided for travel arrangements having to be made (subject to cost) “so that the person leaves the United Kingdom as soon as practicable”; Regulation 4(3) forbade cash payments in lieu of travel or accommodation arrangements, and required the making of arrangements in such a way as to “prevent the obtaining of services or benefits other than those specified in the arrangements”; and Regulation 4(4) provided that “a local authority must have regard to guidance issued by the secretary of state..”.[71]Thus as regards EEA classes for whom travel arrangements had to be made some indication of duration was given by regulation 4 in combination with Regulation 3(2), in that the arrangements had to be made so that those persons left as soon as practicable and the power to provide accommodation was a power “pending the implementation of those arrangements”, and that was the limit of the local authority’s power.[72]As regards persons unlawfully present with a child i.e. persons such as Mrs M the Regulations provided no indication as to duration unless it is by reference to “removal directions”. So far as travel arrangements were concerned, the Local Authority was not given power to make them; it would be a matter for the Home Office to make such arrangements as the Guidance to which I am about to turn makes clear.[73]It is in the above context that the Guidance to which the Local Authority “must have regard” has to be considered. The key provisions seem to me to be:- “27. The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (hereafter referred to as “the Regulations 2002”) give limited powers to local authorities to make arrangements for:(a) Nationals of other EEA Member States; and(b) Those with refugee status in another EEA Member State. to travel back to that member state. No arrangements may be made in respect of failed asylum seekers and those unlawfully present in the UK – responsibility for making travel arrangements for these groups of person rests with the Home Office Immigration and Nationality Directorate.” 28. Additionally, Local Authorities are also granted a power under the Regulations 2002 to grant temporary short-term accommodation to some classes of person listed in Schedule 3 pending departure from the United Kingdom. The powers to grant temporary accommodation are limited to the following classes of person who have with them a dependent child: (a) Nationals of EEA states other than the UK; (b) Those with Refugee status in another EEA Member State; and(c) Those unlawfully present in the UK. 31. Accommodation is purely a temporary measure to allow a person with dependent children to be accommodated pending departure from the UK. Local authorities should have regard to the desirability of ensuring that the overall costs of accommodation and the return journey is as cost-effective as possible. 32. For those persons returning to EEA Member States, it is preferable if accommodation does not continue for a period of more than a further 5 days from the date the family first presented for support of assistance to the local authority. For those returning to other countries, it is preferable if accommodation does not continue for a period of more than a further 10 days from the date the family first presented for support or assistance to the local authority. 33. In the event of failure to travel, should the person have an acceptable reason and be able to provide acceptable proof, further accommodation could, in principle, be provided. New travel arrangements should ideally be made at the first possible opportunity and it is preferable if accommodation does not continue for a period of a further 5 days (returns to EEA member states) or 10 days (for those returning to non-EEA States). 34. Where an individual fails to travel and they do not provide an acceptable reason or cannot provide acceptable proof, further accommodation should not be provided to them as set out in the Regulations 2002. Offers of care may be made to any children under Section 20 of the Children Act 1989. But further accommodation, or any other form of support as defined in Paragraph 1(1) of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 should not be provided to the adults. 35. In respect of individuals(s) here unlawfully, the Home Office Immigration and Nationality Directorate will inform local authorities should the individual refuse to cooperate with removal directions. In such an event, all accommodation must be immediately terminated as set out in the Regulations 2002. Offers of care may be made to any children under Section 20 of the Children Act 1989. Again, it follows from the Regulations 2002 that no further accommodation, or any other form of support as defined in Paragraph 1(1) of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 should be provided to the adults. (a) Nationals of other EEA Member States; and (b) Those with refugee status in another EEA Member State. to travel back to that member state. No arrangements may be made in respect of failed asylum seekers and those unlawfully present in the UK – responsibility for making travel arrangements for these groups of person rests with the Home Office Immigration and Nationality Directorate.” (a) Nationals of EEA states other than the UK; (b) Those with Refugee status in another EEA Member State; and (c) Those unlawfully present in the UK.[74]Paragraph 32 clearly does provide guidance as to the duration of the provision of accommodation. Paragraph 35 emphasises that the relevance of being in breach of removal directions is that there is simply no power to provide accommodation once a person is in breach. But what precisely is the Guidance? Is it that in all circumstances the Local Authority should consider about 10 days as the limit or could there be circumstances where much longer would be appropriate? The answer is by no means obvious.[75]The second sentence of paragraph 32 provides “For those returning to other countries, it is preferable if accommodation does not continue for a period of more than a further 10 days from the date when the family first presented for support.” Is that a guide that 10 days should be about the limit to all persons unlawfully present including those in Mrs M’s position, or do the opening words leave room for arguing that if no travel arrangements have either been made or are in the process of being made by the Home Office, then there is greater flexibility? The words “for those returning to other countries” seems to contemplate a decision already taken that the persons should return, and possibly in the context a situation in which travelling arrangements were either about to be made or already made. Why, it could be said, 10 days in this context and 5 days in the EEA classes’ context other than to give a little more time for travel arrangements to be made by the Home Office as compared with the travel arrangements that the Local Authority could make themselves?[76]On the other hand, where Section 17 powers are being withdrawn, it would at first sight seem strange to grant a power to provide accommodation almost as extensive, and strange to place limits on the power as per Regulation 4(3).[77]I considered paragraphs 37 to 50 under the heading “Travel Arrangements” to see whether any assistance could be gained from those paragraphs. But as I read paragraphs 37 to 50, they apply only to persons and situations where travel arrangements have been made by the Local Authority i.e. the EEA classes. At times the language is general and could be applied literally to a person for whom travel arrangements have been made by the Home Office, i.e. those unlawfully present. But starting as the paragraphs do with paragraph 37 which clearly applies only to EEA classes, the intention must be that the other paragraphs apply only to EEA classes.[78]If paragraphs 36 to 50 had applied to those unlawfully present, that would have lent considerable support to a possible interpretation of paragraph 32 of the Guidance that 10 days was a time, contemplating that the Home Office would be making travel arrangements, inapposite if the Home office had no intention of doing so.[79]I have not found it easy to know precisely what the Guidance had in mind. But(a) it seems to me that the thrust of the Guidance and the power being given to the Local Authority is consistently linked with there being travel arrangements;(b) the wording “for those returning to other countries” seems to show a link even in the cases of those unlawfully present, and even though the travel arrangements must be made by the Home Office; and(c) the result in a case such as Mrs M, of placing a limit of 10 days or some short duration where no travel arrangements have been made, leads to an unsatisfactory result (see further below). I have therefore concluded that the Guidance provides the indication of the duration for which accommodation can be supplied under Schedule 3, but where travel arrangements have not been made by the Home Office, it is open to Islington to provide accommodation for a period longer than 10 days pending arrangements being made by the Home Office.[80]I find support for the above view in considering what would be the result of there being a limit of about 10 days in the case of Mrs M. The offer of accommodation of such limited duration would clearly lead to a breach of “a person’s Convention Rights” as Buxton LJ has pointed out. In posing the question which I did at the outset, what was intended to be the position in relation to persons in position of Mrs M, it must have been foreseen that having withdrawn Section 17 powers with one hand, if about 10 days was the limit for the duration of any accommodation, the likelihood was that the powers would be handed back with the other but subject to a constraint. What Islington would then have to determine is what power or duty they could perform under Section 17 to prevent the breach of Convention Rights; their freedom to go back to Section 17 is only to the extent that the exercise of the power under Section 17 “is necessary” for the purpose of avoiding a breach. If that means all that could be supplied was accommodation, then it is of no practical consequence whether the Guidance is construed in the way I have suggested or has the more limited construction favoured by the judge and Buxton LJ. If the regaining of Section 17 powers provides the Local Authority with the option of providing air tickets, then the result (I suggest) is somewhat bizarre. Was it really contemplated by Schedule 3 and the Regulations that, despite Local Authorities not having the power to make travel arrangements for those unlawfully within the United Kingdom, and being placed under the constraints as to the making of cash payments or the provision of any other benefits [Regulation 4(3)], the result of confining the duration of the accommodation would be to give Local Authorities the powers to make travel arrangements, and provide other benefits? The answer appears to be that if to provide air tickets would safeguard and promote the welfare of the child, and promote the upbringing of such child by its family, and if to do so was necessary to prevent a breach of the convention in relation to Mrs M, the child or the father, it would be an option available, if the Guidance is construed as limiting the duration of accommodation to ten days. That seems to place on Local Authorities responsibilities in relation to immigration where the Guidance would suggest that they were still with the Home Office. That, it seems to me, would be an unsatisfactory result, and supports the construction of the Guidance which I have advocated.[81]If I were wrong about the proper construction of the Guidance, then I would agree with Buxton LJ’s conclusions and his Guidance to Islington.[82]The above, however, being my view and that of Maurice Kay LJ, this appeal should, (I would suggest, and subject to the submissions of counsel), be disposed of by allowing the appeal and making a declaration that Islington have the power to provide accommodation under Schedule 3 to M pending her being in breach of removal instructions. That does not impose a duty, simply reflecting the ambit of Islington’s powers. However, it is right to add that in exercising those powers Islington will have to be aware of their Convention obligations. That, in real terms, may leave them little choice but to offer accommodation. But that question can only be answered finally once Islington have reviewed the matter in the light of our judgments.

Order

Appeal allowed; order as per agreed draft minute of order. (Order does not form part of the approved judgment)

Cited in 14 later judgments

and 5 more of the most senior