Slough Borough Council v M, R. (on the application of) [2006] EWCA Civ 655

[2006] EWCA Civ 655Case No C1/2004/1027/QBACF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (COLLINS J)
CO/6886/03
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/05/2006
Before
LORD JUSTICE WARDLORD JUSTICE MAURICE KAYSIR PETER GIBSON
Between
SLOUGH BOROUGH COUNCILAppellantTHE QUEEN ON THE APPLICATION OF ‘M’Respondent
Mr John Howell QC and Mr Kelvin Rutledge (instructed by Slough Borough Council) for AppellantMr Stephen Knafler (instructed by Hackney Community Law Centre) for RespondentMr Jonathan Swift (instructed by The Treasury Solicitor) for Secretary of State for the Home Department (Intervener)Hearing Hearing dates : 21+22 March 2006
Judgment
[1]There are two, mutually exclusive, sources of provision for destitute asylum-seekers whose claims for international protection have not been finally determined by the Secretary of State and the appellate structure. One is administered on behalf of central government, the other by local authorities. The responsibility for the former is set out in section 95 of the Immigration and Asylum Act 1999, which provides:
“(1) The Secretary of State may provide, or arrange for the provision of, support for – (a) asylum-seekers, or (b) dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed … (3) For the purposes of this section, a person is destitute if– (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.” (a) asylum-seekers, or (b) dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed … (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.”
[2]Provision pursuant to section 95 is administered by the National Asylum Support Service (NASS). The prescribed period under section 95(1) is 14 days (Asylum Support Regulations 2000, regulation 7).[3]The responsibility of a local authority derives from an earlier statute – the National Assistance Act 1948 – the original enactment of which was purely domestic welfare provision, but which later became important in the context of asylum-seekers, particularly after R v Westminster City Council, ex parte M, P, A and X (1997-98) 1 C.C.L. Rep. 85 . I shall have to return to that decision later. At this stage I simply record that it gave rise to an amendment to the 1948 Act, the material parts of which (as amended by section 116 of the Immigration and Asylum Act 1999) now provide:
“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing – (a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them … (1A) A person to whom section 115 of the Immigration and Asylum Act 1999 … applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely – (a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute.” (a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them … (a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute.”
[4]The Secretary of State has given relevant approvals and directions under section 21(1). The mutual exclusivity of the NASS system and the system operated by local authorities under section 21 of the 1948 Act is ensured by regulations 6 and 23 of the Asylum Support Regulations 2000 and section 21(8) of the 1948 Act.[5]Leaving aside section 55 of the Nationality, Immigration and Asylum Act 2002 (which does not impact on the present case), a destitute asylum-seeker will usually come within one or other of the two regimes. In the language often used by practitioners in this field, the purely destitute are the business of NASS, while “destitution plus” cases are the preserve of local authorities. The resource implications are considerable for both and it is inevitable that disputes will arise concerning the appropriate categorisation of an individual claimant. This is such a case.[6]M is a citizen of Zimbabwe who arrived in this country in November 2001 on a six month visa. He has since been diagnosed as being HIV-positive and may be suffering from AIDS. In June 2003 he claimed that, in view of his medical condition and the lack of suitable treatment in Zimbabwe, the Secretary of State could not return him to that country without breaching M’s rights under Article 3 of the ECHR. In 2003 he made no claim under the Refugee Convention but he nevertheless fell to be treated as an asylum-seeker for present purposes. This is because, by section 18(3) of the 2002 Act, a claim for asylum includes a claim that to remove a person from, or to require him to leave, the United Kingdom would be contrary to the United Kingdom’s obligations under Article 3 of the ECHR.[7]On 30 April 2003 M requested Slough Borough Council (“Slough”) to undertake an assessment with a view to his being provided with accommodation under section 21 of the 1948 Act. Following an assessment and a series of reviews between August 2003 and March 2004, Slough concluded that M did not qualify for the provision of accommodation under section 21. The reasoning behind that conclusion can be seen in a letter from the Principal Solicitor dated 8 January 2004 and in an assessment of 5 March 2004. The letter states:
“This authority has considered whether M is, for practical purposes, able-bodied. When Miss Rigby … spoke to him on 24 December last he agreed that he felt fit and well. It was her opinion, as an experienced social worker, that M was not physically limited by his illness. He appeared to be a calm intelligent man, with a sense of humour. He walks to his local shops and can attend to all his own personal care needs … M is coping without assistance from social services and it is clear therefore that he does not require assistance to maintain his health. He simply needs accommodation and support. He has both at present. Any problems arising from the loss of his current accommodation would, in this authority’s view, merely be the physical effects of destitution … …should he lose the accommodation currently available to him, any problems he experiences as a result would be due to the physical effects of his homelessness. Accordingly, his case would be one to which section 21(1A) would apply.”
[8]The accommodation which M had had at his disposal was with a cousin but that was limited in time. On 22 December 2003 an application for permission to apply for judicial review was issued. On 29 January 2004 Henriques J granted permission, together with an interim order requiring Slough to provide M with residential accommodation. To this day, he remains in accommodation provided by Slough and, through Mr Knafler, he has praised the care and professionalism of Slough’s social workers.[9]The assessment of 5 March 2004 states:
“ … there is currently no immediate risk to M provided he complies with his healthcare regime. Any risk to health is currently being managed due to adherence to medication and three monthly checks, the latest of which in February 2004 has not resulted in raising any concerns either to M or to the social worker … M has no current eligible needs for Slough Social Services … He is freely independent in all areas of assessed need and is managing his healthcare needs with appropriate support from healthcare professionals. M requires access to appropriate resources to maintain his health and well being. His stated principal need is for accommodation and he has no other social care need over and above meeting this requirement.”
It was and is common ground that it is necessary that M’s accommodation should include provision for refrigeration in respect of his medication.[10]On 27 April 2004 the application for judicial review was heard by Collins J on the basis of an amended claim form which sought the quashing of the assessment of 5 March. He granted the application and quashed the assessment. Slough now appeal against that order. The appeal requires consideration under two headings:(1) Was Collins J correct to find that this case fell within section 21 of the 1948 Act?(2) Even if he was, have subsequent events taken the case outside section 21? The subsequent events include the Secretary of State’s refusal of the Article 3 claim on 12 November 2004, the issue of removal directions on 5 March 2005, M’s successful appeal against the removal directions on asylum (not Article 3) grounds on 30 December 2005 and the Secretary of State’s application for a statutory review of the decision of the Asylum and Immigration Tribunal dated 30 December 2005 (which application is currently stayed in the Administrative Court, pending judgment in the Court of Appeal in the case of AA, concerning involuntary return to Zimbabwe, which judgment was given, in the Secretary of State’s favour on 12 April 2006: [2006] EWCA Civ 401). Before considering the present appeal under the two headings to which I have referred, it is necessary to summarise the judgment of Collins J [2004] EWHC 1109 (Admin).

The judgment of Collins J

[11]In his judgment, Collins J considered the authorities on the relationship between section 95 of the 1999 Act and section 21 of the National Assistance Act. In concluding that this is a section 21 case, he said: “…someone suffering from this condition … is clearly – and the medical evidence confirms this – more vulnerable than the able-bodied. So if he loses his accommodation and becomes destitute, his need for care and attention is indeed going to be the greater because of his condition and it cannot, therefore, be said that the need arose solely because of the destitution or because of the physical effects of the destitution. No doubt the physical effects on him of destitution would be more severe, but they would be more severe, not because of the destitution but because of the destitution plus the illness. Quite apart from that, it seems to me that one has to look at what is the meaning of care and attention and consider whether the authority’s view that there was no need for care and attention resulting from the AIDS condition is one which, in the circumstances, can be upheld.” (Paragraphs 39-40) “Care and attention means, or can mean according to Hale LJ [in R(Wahid) v Tower Hamlets London Borough Council, below] ‘looking after’. It is not necessary, as all the authorities under section 21 show, for the need for care and attention to be for care and attention provided by the local authority. It is a general need for care and attention and, as it seems to me, a person who is chronically ill and who, therefore, needs continual medical care and continual provision of medicines is, by that very fact, properly to be said to be in need of care and attention. Whether that need for care and attention will in a particular case mean that he is required to have accommodation is a wholly different question and it may well be that in cases not involving asylum-seekers, where there are other means whereby these matters can be provided for, section 21 will not come into play at all. In a case such as the present, it seems to me, someone who is chronically ill is properly to be regarded as being in need of care and attention, not solely because he is destitute. Therefore, in this case, the appropriate responsibility lies with Slough rather than with the Home Office through NASS.” (Paragraphs 43-44)

The original grounds of appeal

[12]Putting on one side for the moment the question whether events subsequent to the judgment of Collins J have impacted on the duty which he held Slough to have, it is first necessary to consider the original grounds of appeal which seek to take issue with the reasoning of Collins J. No doubt as a result of the long gestation of this appeal, Mr Howell QC has taken the opportunity to articulate these grounds in a number of ways. For simplicity of presentation I take this formulation from his second supplementary skeleton argument. “(1) M was and is not a person ‘in need of care and attention’ which is not otherwise available to whom a duty may be owed under section 21(1)(a) of the 1948 Act: he simply needs accommodation. (2) If he does not have accommodation (and he thereby becomes destitute), any need for ‘care and attention’ within the meaning of section 21(1)(a) which he may subsequently develop will arise solely because he will be destitute or because of the physical effects of his being destitute. With accommodation he has no such need. Accordingly, whilst he remains a person subject to immigration control, Slough may not provide him with residential accommodation under section 21, given section 21(1A) of the 1948 Act.”[13]I shall refer to these, respectively, as “the section 21(1)(a) argument” and “the section 21(1A) argument”.

The section 21(1)(a) argument

(a) argument

[14]The issue upon which this argument focuses is the meaning of the words “in need of care and attention”. Mr Howell submits that the section does not mean that anyone who is both destitute and old, ill or disabled is in need of care and attention. It may be that a person who is, say, destitute and ill is able to take care of and attend to himself. Moreover, a person who needs medical treatment or medical services is not, without more, in need of care and attention. His medical needs are a matter for the National Health Service under the National Health Service Act 1977, not a matter for social services. Similarly, if the social need is for a form of support or practical assistance, this may fall to be provided by social services but may fall short of “care and attention”. Mr Howell has referred to numerous statutory provisions and to authorities in which they have been interpreted to support his submission that “care and attention” are demanding concepts which are not to be diluted. His submission is that, as a result, Collins J was wrong to hold that “a person who is chronically ill and who, therefore, needs continual medical care and continual provision of medicines is, by that very fact, properly to be said to be in need of care and attention”.[15]I find this to be a logical submission but I am persuaded by Mr Knafler that it is foreclosed by recent authority on the subject. In M, P, A and X (above, paragraph 3), it was held that all asylum-seekers, whether infirm or able-bodied, were potential beneficiaries of section 21. It is implicit in this decision that “care and attention” was not being interpreted in the narrow way for which Mr Howell contends but could extend to the provision of shelter, warmth, food and other basic necessities. M, P, A and X, if left undisturbed, would have imposed an intolerable burden on local authorities. The White Paper Firmer, Faster, Fairer: a Modern Approach to Immigration Control (1998, Cmnd 4018) described and quantified the burden, describing it as “unsustainable in the long term, especially in London”. This led to section 95 of the Immigration and Asylum Act 1999 and the amendment of section 21 of the 1948 Act by the insertion of section 21(1A), which gave effect to the policy referred to in the White Paper (paragraph 8.23):
“The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able-bodied asylum-seekers. This role will fall to the new national support machinery.”
[16]The first case in which the new provisions were considered was R(O) v Wandsworth London Borough Council [2000] 1 WLR 2539 CA. There, the submission which found favour with Simon Brown LJ was:
“…if an applicant’s need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include … age, illness and disability … If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be yet more vulnerable and less well able to survive than if he were merely destitute.”
[17]He added (at p.2548H):
“Assistance under the Act of 1948 is … the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled.”
[18]The subsequent case of R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956, was concerned more with the mutual exclusivity of section 21 of the 1948 Act and section 95 of the 1999 Act than with the test for “in need of care and attention”, which criterion was taken without argument to have been satisfied in that case. Lord Hoffmann said (at paragraph 50) that the House of Lords was not concerned to decide whether the test laid down in O was correct.[19]The issue was revisited by the Court of Appeal in R (Mani) v Lambeth London Borough Council [2003] EWCA Civ 836, (2003) 6 CCLR 376. Simon Brown LJ (at paragraph 18-20) said:
“If, as is apparent from [M, P, A and X], all destitute asylum-seekers, unless they are explicitly excluded by section 21(1A), would be entitled to accommodation under section 21, to my mind it is clear that some at least of those subject to immigration control have a substantially better chance of qualifying for section 21 accommodation than their indigenous counterparts. Of course, the introduction into section 21 of subsection (1A) means that fewer immigrants in future will qualify for such accommodation than before the 1999 Act was passed. But subsection (1A) cannot alter the meaning of section 21(1)(a) and suddenly confine its scope to accommodating only those who have ‘accommodation-related need’, still less confine its operation to the accommodation only of those who would be entitled to section 21 accommodation even if they had none of the needs stemming from their immigration status … In short, it seems to me that Lambeth here are well and truly caught in the coils of the existing authorities … True, the correctness of the test established in ex parte O was expressly left open in paragraph 50 of Lord Hoffmann’s speech … But certainly at this level we are bound by ex parte O and in any event there are certain passages in Lord Hoffmann’s speech … tending to suggest that the line drawn by section 21(1A) is indeed, consistently with paragraph 8.23 of the 1998 White Paper … , between the able-bodied and the infirm destitute … …the test now applicable equally to asylum-seekers as to non-asylum-seekers is that laid down by ex parte O and it must remain so unless and until the House of Lords decides otherwise or Parliament in some way adjusts the balance of responsibility between NASS and local authorities.”
[20]In a sense, the House of Lords has squared the circle because, on 21 January 2004 the Appellate Committee (comprising Lord Hoffmann, Lord Rodger of Earlsferry and Lady Hale of Richmond) refused Lambeth leave to appeal on the ground that there was no arguable point of law of general public importance.[21]Although Mr Howell, in ingenious submissions, attempts to reopen the door by submitting that some of the passages to which I have referred were obiter or have been misunderstood, it seems to me that his logical argument has been rejected in favour of another logical argument which has powerful support from recent history and policy in this area. To construe “care and attention” in the narrow way suggested by Mr Howell would, in the present context, fly in the face of the way in which the courts have consistently addressed section 21(1)(a) since M, P, A and X and the legislative change to which it gave rise. In my judgment, the reasoning of Collins J was faithful to that approach.

The section 21(1A) argument

[22]Collins J concluded that, if M were to lose the accommodation currently provided by Slough pursuant to the interim order, he would be a “destitution-plus” case in the context of section 21(1A):
“… his need for care and attention is indeed going to be the greater because of his condition and it cannot, therefore, be said that the need arose solely because of the destitution or because of the physical effects of the destitution.”
[23]Mr Howell seeks to take issue with this. He submits that the only reason why M may come to be in need of care and attention will be if he has no accommodation. Accordingly, any need for care and attention will arise solely because he is destitute in the sense of being without accommodation or because of the actual or physical effects of his being destitute. Put another way: if the need for care and attention would not have arisen without destitution or its effects, it has arisen solely due to them. The fact that M’s health may mean that he is more vulnerable if he is without accommodation than someone who is not suffering from any illness does not mean that his need for care and attention will have arisen for any reason other than his destitution or its actual or anticipated effects.[24]Once again, I find these submissions to be irreconcilable with the recent authorities. Mr Howell tries to establish a foothold by seeking to drive a wedge between the judgments of Simon Brown LJ and Hale LJ in ex parte O. However, I do not see any significant difference between them. The relevant passage in the judgment of Simon Brown LJ is the one from which I have quoted in paragraphs 16 and 17, above. He added (at p.2548G):
“The word ‘solely’ in [section 21(1A)] is a strong one and its purpose there seems to me evident.”
[25]Hale LJ expressly agreed with Simon Brown LJ (at p.2553G) and Kay LJ agreed with both judgments (at p.2558A). The relevant passage in the judgment of Hale LJ is as follows (at p.2557H):
“Parliament might have gone even further in denying such services completely, but chose to limit that denial to those whose need arose ‘solely’ from destitution. This must leave it open to those whose need arises also from other causes to seek such assistance.”
That, it seems to me, is entirely consistent with the formulation of Simon Brown LJ.[26]In the NASS case (at paragraphs 40-43), Simon Brown LJ made some self-critical obiter observations about what he had said in ex parte O. However, in Mani he said (at paragraphs 20-21, quoted in paragraph 19, above) that those “reflections” are really “nothing to the point” and added that ex parte O remains binding authority.[27]I agree that we are bound by ex parte O. I also consider that it is correct. This is the jurisprudence which informed the judgment of Collins J on this issue. I cannot fault his application of it. In a further, albeit suitably restrained submission, Mr Howell suggests that Collins J strayed outside the permissible ambit of judicial review and, in effect, substituted his own assessment of M’s eligibility for that of Slough. I do not accept this submission. What Collins J decided was that if Slough had applied the correct test, based on ex parte O and Mani, its conclusion would inevitably have favoured M.[28]It follows from what I have said that, in my judgment, this appeal as originally formulated – that is to say, a complaint about the approach of Collins J and the authorities upon which he relied – must fail. Whilst the interpretative task carried out by the courts in the years from M, P, A and X to the present case has not been an easy one, it has seen a consistency of approval which sits easily with the policy set out in the White Paper of 1998. I now turn to consider the significance of events which have occurred since the judgment of Collins J.

Is M still eligible for assistance under section 21?

[29]In paragraph 10 of this judgment I recounted the developing history of the relationship between M and the Secretary of State since the judgment of Collins J. Its significance to this appeal is that Slough contend that, even if Collins J was correct on the material that was before him, M later ceased to be an asylum-seeker for present purposes when the Secretary of State refused his Article 3 application on 12 November 2004 and that remains the position to this day, notwithstanding M’s subsequent appeal which was successful on asylum grounds on 30 December 2005. At this point it is appropriate to record that the present appeal was first listed for substantive hearing on 15 December 2004 before Ward LJ, Jonathan Parker LJ and myself but it was adjourned on that occasion because it had been complicated by the decision of the Secretary of State on 12 November 2004 of which Slough had only just become aware. On that occasion, Mr Howell first indicated the submission which he now seeks to develop.[30]The submission is based on the interplay of a number of statutory provisions to which I now refer. By section 18 of the Nationality, Immigration and Asylum Act 2002 it is provided:
“(1) For the purposes of this Part a person is an ‘asylum seeker’ if - (a) he is at least 18 years old, (b) he is in the United Kingdom, (c) a claim for asylum has been made by him at a place designated by the Secretary of State, (d) the Secretary of State has recorded the claim, and (e) the claim has not been determined.”
[31]As “a claim for asylum” includes an Article 3 claim (section 18(3)(b)), it is common ground that M was and remained an asylum seeker until 12 November 2004. Mr Howell submits that he ceased to enjoy that status at that point because that was the end of the period during which the claim had not been determined. This is because, as at 12 November, M had no right of appeal against the decision of the Secretary of State. Contrary to popular belief a decision to refuse asylum per se is not appealable. Rights of appeal are conferred by section 82 of the 2002 Act which provides:
“(1) Where an immigration decision is made in respect of a person he may appeal to [the Asylum and Immigration Tribunal].”
Subsection (2) then sets out an exhaustive list of “immigration decisions”. A refusal of asylum is not one of them. The “immigration decision” which usually gives rise to an asylum appeal is a decision to remove an unsuccessful applicant from the United Kingdom by way of directions (section 82(2)(g)). In most cases the refusal of asylum and the removal directions are contemporaneous but there is no legal requirement that they must be so and in the case of M they were not. Removal directions were not issued until 5 March 2005. Mr Howell submits that not only did M cease to be an asylum-seeker on 12 November; he did not retake the status when he instituted an appeal against the removal directions on Article 3 grounds on 17 March 2005. This is because of the provisions of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, which is headed “Withholding and withdrawing of support”. Paragraph 1(1) of Schedule 3 provides:
“a person to whom this paragraph applies shall not be eligible for support or assistance under – (a) section 21 … of the National Assistance Act 1948 … (l) a provision of the Immigration and Asylum Act 1999; or (m) a provision of this Act.” (a) section 21 … of the National Assistance Act 1948 … (l) a provision of the Immigration and Asylum Act 1999; or (m) a provision of this Act.”
[32]Paragraphs 4, 5, 6, 7 and 7A now prescribe five classes of ineligible persons, of which it is necessary to refer only to – “6. Paragraph 1 applies to a person if –(a) he was (but is no longer) an asylum-seeker, and(b) he fails to cooperate with removal directions issued in respect of him … 7. Paragraph 1 applies to a person if – (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.” (a) he was (but is no longer) an asylum-seeker, and (b) he fails to cooperate with removal directions issued in respect of him … (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.”[33]For the purposes of Schedule 3, “asylum seeker” is defined slightly differently from the definition in section 18. By paragraph 17(1), the term is defined as meaning a person - “(a) who is at least 18 years old, (b) who has made a claim for asylum (within the meaning of section 18(3), and (c) whose claim has been recorded by the Secretary of State but not determined.”[34]One of the categories of persons “in the United Kingdom in breach of the immigration laws” is a person who “does not have leave to enter or remain (whether or not he had previously had leave)”. It will be recalled that M’s leave expired on the expiry of his six month visa in May 2002. Thus, submits Mr Howell, he falls fairly and squarely within paragraph 7. Moreover, his appeal which commenced in March 2005, albeit that it was on asylum grounds (in the wider Article 3 sense) did not have the effect of recapturing the status of “asylum-seeker” in the section 18 sense because it was a claim advanced directly to the Immigration Appellate Authority (now the Asylum and Immigration Tribunal) and was not made “at a place designated by the Secretary of State”, nor was it recorded by the Secretary of State (section 18(1)(c) and (d)). It sought the determination not of the Secretary of State but of an adjudicator or immigration judge.[35]Clearly, if Mr Howell’s complex submission is correct, M is no longer an eligible claimant under section 21 of the National Assistance Act, even though, as I have concluded, Collins J came to a correct conclusion about section 21 in relation to the matters that were addressed to him. However, Mr Knafler and Mr Swift, who intervenes on behalf of the Secretary of State at the invitation of the Court following the adjourned hearing of 14 December 2004, seek to take issue with Mr Howell’s analysis. They make a number of submissions. Mr Swift seeks to portray the relationship between the asylum-seeker and the Secretary of State as a single, continuing one from first claim until final disposal, regardless of what procedural turns are taken along the way. He submits that that is “the scheme” and that the provisions of Schedule 3 should be construed, if at all possible, so as to give effect to it. Thus, he further submits, “determined” in paragraph 17(1)(c) is not limited to “determined by the Secretary of State”.[36]In my judgment, this approach places too much strain on the statutory language. “Determined” is defined in paragraph 17(2) in this way:
“For the purposes of the definition of ‘asylum-seeker’ in sub-paragraph (1) a claim is determined if – (a) the Secretary of State has notified the claimant of his decision, (b) no appeal against the decision can be brought (disregarding the possibility of an appeal out of time with permission), and (c) any appeal which has already been brought has been disposed of.” (a) the Secretary of State has notified the claimant of his decision, (b) no appeal against the decision can be brought (disregarding the possibility of an appeal out of time with permission), and (c) any appeal which has already been brought has been disposed of.”
[37]It is clear, therefore, that the relevant determination is one of the Secretary of State – “his decision” – and the emphasis is on the situation where no appeal against the decision can then be brought (paragraph 17(2)(b)) and any appeal which has already been brought has been disposed of (paragraph 17(2)(c). Moreover, I do not accept (as Mr Swift is bound to submit) that the recording of the original claim in June 2003 satisfies the recording requirement of paragraph 17(1)(c) in relation to the claim made by way of appeal against the removal directions in March 2005. That claim did not require to be recorded by the Secretary of State who was simply the respondent to the appeal.[38]Whilst it is no doubt true that the decisions of the Secretary of State to refuse asylum and to issue removal directions are usually contemporaneous, with the result that an asylum-seeker who then appeals (in form against the removal directions) is not excluded from support by paragraph 6 of Schedule 3 until his appeal has been determined and he fails to cooperate with the removal directions, that structure is put asunder when the removal directions are not contemporaneous with the refusal of asylum. That may be the law of unintended consequences, for Mr Swift relates that an appeal against removal directions in the circumstances of the present case is in fact recorded by the Secretary of State on the same database as the earlier asylum claim and no advantage is sought by the Secretary of State as a result of the adventitious separation of the two decisions. Nevertheless, I remain unpersuaded that, after the refusal of the asylum claim in November 2004, M could still be considered an asylum-seeker for present purposes.[39]Perhaps in anticipation of this analysis, Mr Knafler seeks to make an alternative submission. It is based on the relationship between paragraphs 6 and 7 of Schedule 3. It is to the effect that paragraph 6 is intended to ensure that an asylum-seeker remains eligible unless and until he fails to cooperate with removal directions and that, consequently, paragraph 7 does not apply to failed asylum-seekers. Although this submission has a superficial attraction, it was rejected by Lloyd-Jones J to whom Mr Knafler advanced it in R (on the application of AW) v London Borough of Croydon and others [2005] EWHC 2950 (Admin). We are not bound by that decision but in my judgment it is correct. As Lloyd-Jones J said (at paragraph 19):
“… there is nothing in the scheme or language of Schedule 3 to support the view that paragraph 6 was intended to make exclusive provision for failed asylum-seekers to the exclusion of other categories of ineligibility. On the contrary, there appears to be no good reason why a failed asylum-seeker who is not ineligible by virtue of paragraph 6 may not be ineligible on another ground.”
[40]His Lordship considered that this construction reflects the policy of the 2002 Act to treat asylum-seekers who make their claims at the port of entry more favourably than those who delay. Whether or not that is correct, I am quite sure that his interpretation of Schedule 3 cannot be faulted.[41]I therefore conclude that Mr Howell’s submission that M ceased to be an eligible applicant under section 21 of the National Assistance Act 1948 on 12 November 2004 is correct. However, that does not necessarily mean that, thereafter, he lost all right to support.

The ECHR safeguard

[42]Although Schedule 3 to the 2002 Act is concerned to prescribe categories of ineligibility for support under section 21 of the 1948 Act and other statutory entitlements, paragraph 3 provides:
“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) a person’s Convention rights … ”
[43]This reflects the way in which the exclusion of late applicants from asylum support under section 55 is softened by section 55(5), as to which see R(Adam, Limbuela and Tesema) v Secretary of State for the Home Department [2005] UKHL 66. In AW (above), Lloyd-Jones J concluded that if, in the case of a failed asylum-seeker who otherwise satisfies the criteria of section 21(1) and (1A), the provision of support is necessary for the purpose of avoiding a breach of that person’s Convention rights, that provision is to be made by the local authority pursuant to section 21 rather than by the Secretary of State pursuant to section 4 of the Immigration and Asylum Act 1999, which provides for “hard cases” support.[44]Strictly speaking, we are not seised of an appeal which raises any issue under paragraph 3 of Schedule 3 and what I may call the ECHR safeguard. However, as I understand it, Mr Howell accepts that Slough have a potential liability themselves on the basis of AW if his submission about ineligibility under paragraphs 1 and 7 is correct, as I have found it to be. M will be without accommodation when the current interim relief comes to an end and Article 3 may then bite.

Conclusion

[45]It follows from what I have said that, in my judgment, the decision of Collins J was correct in respect of the facts which existed at the time and I would dismiss Slough’s appeal against his order. However, we have heard full submissions on the effect of the refusal of asylum in November 2004 and subsequent events and, in the circumstances, I would be minded to declare that M’s entitlement under Collins J’s order terminated at that point, without prejudice to any further entitlement which he may have and any obligation Slough may have based on his Convention rights and paragraph 3 of Schedule 3.

Sir Peter Gibson:

[46]I agree.[47]I also agree.

Cited in 3 later judgments