M, R (on the application of) v Islington & Anor [2003] EWHC 1388 (Admin)

Case No CO 398/03[2003] EWHC 1388 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 5 June 2003
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE WILSON
Between
THE QUEEN (on the application of M)ClaimantTHE LONDON BOROUGH OF ISLINGTONDefendantSECRETARY OF STATE FOR THEInterested PartyHOME 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 Messrs Pierce Glynn, appeared for ClaimantMr Bryan McGuire and Mr Paul Turner, instructed by its Legal Department, appeared for DefendantMiss Kristina Stern, instructed by the Treasury Solicitor, appeared for Interested Party
JudgmentAs Approved by the CourtCrown Copyright ©
[1]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? The answer requires me to consider changes in the law wrought by the Nationality, Immigration and Asylum Act 2002, and regulations made thereunder, which came into force on 8 January 2003.[2]The claimant is a female national of Guyana. She came to the U.K. early in 1998 with the benefit of a visitor’s visa valid for six months. She has lived here ever since. In November 1999 she married Mr M (“the husband”), a native of Antigua who has indefinite leave to reside in the U.K. The claimant and the husband set up home in his small council flat in Islington. On 17 October 2001 a daughter (“the child”) was born to them. In that, at the time of her birth, the husband was settled in the U.K, the child has British nationality. In August 2002 the husband left the claimant; and the marriage finally broke down. The claimant has continued to live with the child in the council flat, the tenancy of which, subject to substantial arrears of rent, has been transferred by court order into her name. But she is not entitled to state benefits. Pending determination of this claim, the Defendant (“Islington”) has been ordered to continue to allow the claimant and the child to occupy the flat notwithstanding that she has not been able to pay the rent; it is also properly giving effect to the spirit of the order by making payments enabling them to subsist meanwhile.[3]The claimant has made and continues to make strenuous attempts to secure indefinite leave to remain in the U.K. In June 1998, prior to the expiry of her visitor’s visa, she applied to the Secretary of State for an indefinite extension of her leave to remain. In July 2000 that application was refused; and the claimant did not appeal against it. Meanwhile, however, in December 1999, shortly after her marriage, she had made a fresh application for leave to remain in the U.K. by virtue of the marriage. In January 2002 that application was also refused, apparently on the basis that even then the marriage was no longer subsisting. That conclusion was apparently reached by reference to something said by the husband. In February 2002 the claimant appealed against that second refusal but even now, sixteen months later, the appeal remains unheard. In that now, at any rate, the marriage has broken down, the prospects for its success are accepted to be forlorn. In November 2002, however, further representations were submitted by the claimant, through solicitors, to the Secretary of State for a grant of exceptional leave to remain on compassionate grounds relating in particular to the child’s connections with the U.K and the claimant’s alleged inability to provide for her in Guyana. The Secretary of State has not yet responded to those representations. Miss Stern, who appears on behalf of the Secretary of State as an Interested Party, ascribes the delays in processing the claimant’s various attempts to secure indefinite residence in the U.K. to a shortage of resources and to the priority currently given to the processing of claims by asylum-seekers. She also points out that, even were the outstanding appeal dismissed and the outstanding representations rejected, the claimant might nevertheless make further representations to the Secretary of State to the effect that removal would infringe the human rights of herself and/or the child under the Human Rights Convention of 1950. As I will explain, the claimant is already raising substantial arguments to such effect in these proceedings. Were the Secretary of State to reject any such further representations and to decide to issue directions for her removal, the decision could be the subject of appeal to an adjudicator under s.65 of the Immigration and Asylum Act 1999.[4]On 27 January 2003, when these proceedings were issued, it was hesitantly assumed both by the claimant and by Islington that she was still lawfully present in the U.K. It was thought that such was the probable effect of pendency of the appeal against the refusal of the application in January 2002. On about 12 March 2003, however, the Secretary of State suggested that the claimant was no longer lawfully present in the U.K; and his view is now accepted by the claimant and by Islington as correct. It appears that the claimant’s first application for indefinite leave to remain, made prior to the expiry of her visa, won her a statutory extension of leave until 28 days after it was refused, i.e. until August 2000. Her second application, however, was made only within the period of extension statutorily granted to her by reason of her first application and therefore never attracted statutory extension in its own right: see paragraph 3(2)(c) of the Immigration (Variation of Leave) Order 1976 (1976 No. 1572); thus there is no such leave capable of further extension pending the appeal.[5]The discovery that the claimant is unlawfully present in the U.K. has had a major impact upon the shape of this application. First, it led Islington to review its previous decision, which (as I will explain) was to refuse to support the claimant and which was the initial subject of the challenge in these proceedings. In the event, as I will explain, Islington resolved essentially to adhere to its previous decision, although it considered that it needed to frame it by reference to different legal powers. The legal arguments raised in the case have shifted analogously and indeed dramatically.[6]In September 2002 the health visitor referred the claimant and the child to Islington’s social services department on the basis that they were in need of financial assistance. Islington embarked upon an assessment of the child’s needs under the Children Act 1989. The social worker allocated to the case conducted two meetings with the claimant, namely on 4 December 2002 and 7 January 2003; present at both interviews in order to assist the claimant was an adviser from Hackney Women’s Aid. I will need to look more carefully at what Islington gleaned about the case from these meetings. It suffices to say at this stage that at the second meeting the allocated worker explored at length the possibility that the claimant and the child might return to Guyana; and it is clear that, supported by her adviser, the claimant expressed vehement opposition to that course.[7]Following discussions between the allocated worker and senior members of her department, Islington reached a decision. On 14 January 2003 it was communicated orally to the claimant’s adviser: it was that Islington was not prepared to provide monetary or other assistance for the claimant to remain in the U.K. but was prepared to fund the purchase of one-way tickets to Guyana for her and the child. On 20 January 2003 the decision was communicated by letter from the allocated worker to the claimant’s adviser. In the letter Islington said:
“Following the referral you made in regards to the above family’s financial and housing situation, I am writing to inform you that I have completed my assessment on the family. From the assessment it was obvious that the family have financial difficulties with very limited support network in the U.K. Unfortunately, this Department is unable to provide the ongoing financial support they require towards their rent and day-to-day subsistence. The Department is of the opinion that it will be in the best interest of [the child] that [the claimant] considers returning to Guyana. This is because we feel that both [the child and the claimant] will be better supported by extended family members in Guyana.”
In the letter the allocated worker did not expressly repeat the offer to fund travel to Guyana; but such was no doubt implied. Islington’s written ‘core assessment’ of the child’s needs was sent to the claimant by her solicitors only on 3 March 2003. The document records that its compilation began on 4 December 2002 and that it was completed on 5 December 2002 and was updated on 30 January 2003.[8]Following the conclusion in mid-March that the claimant was unlawfully present in the U.K., Islington resolved to reconsider its decision, in the light, in particular, of any change in the relevant legal framework. It thereupon wrote a very careful letter dated 27 March 2003, which is now the target of the claimant’s assault in these proceedings. In the letter it set out its analysis of its powers and of their proper exercise in the light in particular of allegations made on behalf of the claimant that its refusal to provide accommodation and support for her and the child and/or its offer of tickets for them to return to Guyana would infringe their rights in particular under Articles 3 and 8 of the Convention of 1950. Subject to refinement, Islington in effect repeated its previous offer. It offered to fund the purchase of one-way tickets for the claimant and the child to travel to Guyana; that offer was made in purported exercise of its power under s.17 of the Act of 1989. Additionally it offered to provide accommodation for the claimant and the child for a period of 21 days (subject perhaps to a short extension) in order to enable her to make the travel arrangements; that offer was made pursuant to para. 3(3) of the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (S1 2002 No. 3078) (“the Regulations”). In the final paragraph of the letter Islington said:
“Two further matters: what Islington is doing is making an offer. It seems to us that this is inherently unlikely to amount to a breach of Convention rights. Moreover, as we have been careful to explain, we have 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 your child into care. Also we note that it is contended that Islington has failed to take into account that you would reject the offer. That is not so. In the event that you refuse to accept the offer made even following court proceedings, then Islington would continue to assess what is in the best interests of your child in the light of developing circumstances.”
On behalf of Islington Mr McGuire accepts that the basis of the decision dated 27 March, as of the decision dated 20 January, was a conclusion that the return of the child with the mother to Guyana would best safeguard and promote the child’s welfare.[9]In these proceedings Mr Knafler, on behalf of the claimant, asks me to quash the decision dated 27 March 2003. He submits that it was unlawful for Islington not to offer to accommodate the claimant and the child under the regulations of 2002 until such time, if any, as she failed to co-operate with any removal directions which the Secretary of State might issue against her. He submits that it was unlawful for Islington instead to make a decision to offer to fund the child’s travel with the claimant to Guyana under s.17 of the Act of 1989. He submits that Islington’s decision was based upon a flawed assessment of the child’s welfare and infringed her and the claimant’s human rights, in particular their right to respect for private and family life under Article 8 of the Convention of 1950.[10]The part of the Act of 2002 with which I am concerned is Schedule 3 (“the Schedule”), which has effect by virtue of s.54. Written into the text of s.54 is a summary of the Schedule, namely that it “makes provision for support to be withheld or withdrawn in certain circumstances”. The support to which it refers is support by local authorities under a raft of provisions set out in para. 1 of the Schedule, notably under the National Assistance Act 1948, the Act of 1989 and the Local Government Act 2000.[11]Paragraphs 4 to 7 of the Schedule identify four classes of person as ineligible for such support.[12]By para. 4, the first class is the person with refugee status in another state of the European Economic Area and, by para. 5, the second class isthe citizen of such other state. Perceived problems in relation to these two connected classes (“the E.E.A classes”) were a principal motive for the legislation in Schedule 3. Exemplified even by a number of reported cases, for example the decision of the Court of Appeal in R on the application of G v Barnet LBC [2001] 4 CCLR 128, was a practice whereby people of, say, Somali origin who had acquired refugee status in, or citizenship of, say, Sweden or Holland came to the U.K and, being ineligible for state benefits, applied to local authorities for support under one or more of the three statutes to which I have referred.[13]By para. 6, the third class is the failed asylum-seeker who has failed to co-operate with removal directions issued in respect of him.[14]By para. 7, the fourth class is the person who, not being an asylum-seeker, is unlawfully present in the United Kingdom. It is unnecessary to study the precise definition of that class because it is agreed that the claimant falls within it.[15]The Schedule provides three main “exceptions” to the ineligibility of the four classes for support: a) the prohibition does not apply to support for a child (para. 2(1)(b)); b) it “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 rights under the Convention of 1950 (para 3); and c) it does not prevent the provision of support or assistance under regulations made under paras 8, 9 or 10 (para. 2(1)(c)).[16]Paragraphs 8, 9 and 10 of the Schedule are as follows:
“ Travel assistance 8. The 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 dependent child, and (b) may include arrangements for a dependent child. 10. (1) The Secretary of State may make 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 co-operate with removal directions issued 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 dependent child, and (b) may include arrangements for a dependent child.”
Temporary Accommodation (2) Arrangements for a person by virtue of this paragraph - (a) may be made only if the person has with him a dependent child, and (b) may include arrangements for a dependent child. (a) paragraph 1 applies to him by virtue of paragraph 7, and (b) he has not failed to co-operate with removal directions issued 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 dependent child, and (b) may include arrangements for a dependent child.”

Temporary Accommodation

[17]The Schedule therefore enables regulations to be made which empower local authorities:(a) in the case of the E.E.A classes, to make arrangements for them to leave the UK and, if they have a child with them, for their accommodation pending their departure; and(b) in the case of the fourth class, and provided both that they have a child with them and that they have not failed to co-operate with removal directions issued in respect of them, to make arrangements for their accommodation. There is no power to make regulations in respect of the third class.[18]By para. 11(e) of the Schedule, any such regulations may require a local authority to have regard to guidance issued by the Secretary of State in making any such arrangements.[19]The nature of any power conferred by any regulation made pursuant to paras 8 to 10 of the Schedule is worth noting. The framework of the Schedule is to prohibit the exercise of a raft of powers. But it is wrong to think that the effect of any such regulation is that, in the circumstances there specified, such powers remain exercisable. The exercise of a power conferred by any such regulation is the exercise of a new, freestanding power, not of an existing power saved from prohibition. Such a conclusion may be collected from the contrast between the wording of para. 2(1)(c) of the Schedule and that of para. 2(1)(d) and (e): the latter gives the Secretary of State power to “disapply” the prohibition but the former makes clear that such is not the power which he would exercise if making regulations under paras 8 to 10.[20]The Regulations were made pursuant to the powers in paras 8 to 10 of the Schedule. Regulations 3 and 4 are 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) – (a) may be made only if the person has with him a dependent child, and (b) 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 the 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.” travel and provide accommodation (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) – (a) may be made only if the person has with him a dependent child, and (b) may include arrangements for that child. accommodation arrangements (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 the 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.”

accommodation arrangements

[21]It will be seen that in themselves the Regulations put little flesh on the bones set in the enabling Schedule. Paragraphs (1) and (2) of Regulation 3 address the E.E.A. classes while (3) addresses the fourth class. Importantly, however, the Secretary of State has, by para. (4) of Regulation 4, made use of the power in para. 11(e) of the Schedule to require a local authority to have regard to guidance issued by him in exercising the powers in Regulation 3.[22]Such guidance (“the Guidance”) has duly been issued. Its material paragraphs are as follows:
“GUIDANCE TO ASSIST AUTHORITIES TO DETERMINE WHETHER TO MAKE TRAVEL ARRANGEMENTS/GRANT TEMPORARY SHORT-TERM ACCOMMODATION 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. 29. There is no power to grant temporary accommodation to failed asylum seekers who are refusing to co-operate with removal directions, regardless of whether they have with them a dependent child. In cases where there is a dependent child, local authorities may grant temporary accommodation to the child only if the authority identifies that they have a duty to the child under section 20 of the Children Act 1989. 30. By virtue of paragraph 11(e) of Schedule 3 to the 2002 Act, local authorities should have regard to the guidance set out in paragraphs 31 to 50 when determining how to make these arrangements. Temporary Accommodation 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 cost 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 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. 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 … 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 … 35. In respect of individual(s) here unlawfully, the Home Office Immigration and Nationality Directorate will inform local authorities should the individual refuse to co-operate 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. 36. … Travel Arrangements …” (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. Temporary Accommodation Travel Arrangements …”
[23]In that the claimant is unlawfully present in the U.K., has with her a dependent child and has not failed to co-operate with removal directions (none having been issued in respect of her), Mr Knafler argues that Islington has a power to arrange for her accommodation with the child under Regulation 3(3); that it was unlawful for Islington to decide not to exercise it other than in respect of about 21 days; and that the only lawful decision would have been to arrange for such accommodation unless and until the claimant did fail to co-operate with removal directions or until her presence in the U.K. ceased to be unlawful. With this argument Mr McGuire, supported by Miss Stern, strongly joins issue.[24]The central problem raised by Regulation 3 is that it seems to conflate two very different classes, namely the E.E.A. classes on the one hand and the fourth class on the other.[25](a) Persons in the E.E.A. classes are not in the U.K. unlawfully and so the Secretary of State has no power to require their removal. Yet, whether as refugees or citizens, they belong to states where they are presumably entitled to public benefits and to which it would presumably be safe for them to be returned. In the U.K. they are not entitled to state benefits and in principle there is no reason why local authorities should support them. Thus, subject to the over-arching canopy of their human rights, it seems entirely appropriate that a local authority’s obligations towards them should be limited to arranging for their travel back to their E.E.A. state and, pending implementation of such travel arrangements as “have been or are to be made” and in the event that a child is present with them, to arranging for their accommodation. In that context, therefore, there is no reasonable call for the provision of any accommodation other than in the very short term.(b) Persons in the fourth class, however, may be in an entirely different situation. Arrangements for their travel abroad are the responsibility only of the Secretary of State and are effected by his issue of removal directions. But there may be a variety of reasons why, even though they are unlawfully present in the U.K., a substantial period may elapse before he issues directions for their removal. Practical or other difficulties sometimes attend removal to a particular state; but the more usual reason for delay, as in the claimant’s case, is the pendency of an appeal or his need to consider further representations. Particularly in light of the human rights points apparently still in her quiver, the claimant can reasonably expect, even if ultimately she fails to secure leave to remain, that she will not be subject to removal directions for a substantial period. So a power to accommodate her until failure to co-operate with directions is – on the face of it – a power to accommodate her for a substantial period.[26]Is such really the effect of Regulation 3 in its application to the fourth class?[27]It is agreed that the scope of a statutory power is often identified by a purposive interpretation. It would be odd to find a free-standing power to accommodate for a substantial period:(a) in regulations made under a schedule described by Parliament as making provision “for support to be withheld or withdrawn”;(b) in regulations of which the title refers to “Travel Assistance and Temporary Accommodation”; and(c) in the third paragraph of a regulation tucked underneath a paragraph which provides a power to arrange for accommodation only in the very short term.[28]One answer to the conundrum might be for Regulation 3(3) to be so construed as to require that removal directions must have been issued, albeit of course for removal on a future date or on a date to be notified, before the power to accommodate arises. But neither Mr McGuire nor Miss Stern argues for that construction; and, in the light of their calibre, that speaks for itself. I have pointed out at §25(a) above that accommodation for the E.E.A. classes can be provided in advance of the making of travel arrangements and, although the difference of terminology cuts both ways, it would be odd if the power to accommodate persons in the fourth class was even more restrictive. Nor do I find it easy to ignore the fact that such a construction would run counter to para. 2 of the Introduction to the Guidance, which refers to the power to accommodate “those unlawfully present in the U.K. whilst they await removal directions from the Immigration Service”.[29]The answer, say Mr McGuire and Miss Stern, lies less in construction of the words of the power than in enquiry into the proper ambit of its exercise. Here the argument turns to the context of the power (see §27 above) and to the Guidance.[30]In relation to this power Parliament empowered the Secretary of State to require local authorities to “have regard to” guidance (para. 11(e) of the Schedule); and he has indeed required them to do so (Regulation 4(4)). There is an issue between the parties as to the proper treatment by local authorities of guidance to which they must “have regard”.[31]In R v Islington LBC ex p Rixon [1998] 1 CCLR 119 Sedley J, as he then was, considered the effect of guidance issued under s.7(1) Local Authority Social Services Act 1970, which provided that “local authorities shall … act under the general guidance of the Secretary of State”. At 123J-K he said:
“While guidance and direction are semantically and legally different things and while ‘guidance does not compel any particular decision’ … especially when prefaced by the word ‘general’, in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”
[32]While Mr McGuire argues that such, broadly, is the approach applicable to the Guidance in the present case, Mr Knafler differentiates between a duty to “act under” and a duty to “have regard to” guidance. He commends to me the approach of Lord Denning MR in De Falco v Crawley BC [1980] QB 460 at 478, where the statute under consideration, as here, required local authorities to “have regard to” guidance:
“The council, of course, had to have regard to the code … but, having done so, they could depart from it if they thought fit. This is a case in which they were perfectly entitled to depart from it …”
[33]In my view there is, as Mr Knafler suggests, some difference between the two duties, although I suspect that the difference is more theoretical than real. An injunction to “act under” something does seem slightly stronger than an injunction to “have regard to” something in taking action. Indeed in the Schedule itself there is a third formulation: for, in paragraph 2(3)(a) and (5), there are references to taking steps and acting “in accordance with” guidance; and presumably Parliament’s choice of slightly different words in paragraph 11(e) is intended to convey a slightly different meaning. On the other hand in all these situations the subject-matter is the same, i.e. merely “guidance”; and indeed, in the Rixon case, it was “general” guidance. “It’s as broad as it’s long”, says Mr McGuire. It’s nearly as broad as it’s long, say I.[34]Mr Knafler is deeply critical of the drafting of the Guidance. He says that in a number of passages the draftsman seems to forget that the accommodation arranged for the fourth class may on the face of the Regulation endure for a much longer period than accommodation arranged for the E.E.A. classes. Thus he says that:(a) the reference to “short-term” accommodation in para. 28 of the Guidance is inapt for the fourth class;(b) the references to “pending departure” in paras 28 and 31 are also inapt for them;(c) the guidance to local authorities in para. 31 to keep the cost of the return journey as well of accommodation as low as possible is nonsensical in relation to them because local authorities cannot arrange for their travel; and(d) the target in para. 32 of accommodating the fourth class for no more than 10 days bears no relation to the likely duration of their need for accommodation. On the other hand (says Mr Knafler) the reference in para. 35 to notification to local authorities by the Secretary of State of a refusal to co-operate with removal directions on the part of the fourth class is apt because that is the point at which the provision of accommodation to them properly ends.[35]Mr Knafler has referred me to two authorities in which Lord Hoffmann has held that governmental guidance about the effect of legislation was simply wrong and should be ignored: R v Brent LBC ex p Awua [1996] AC 55 at 70C and R v Wandsworth LBC ex p Beckwith [1996] 1 WLR 60 at 65B. But I do not discern in the Guidance any significant misrepresentation about the effect of Regulation 3. On the contrary, the problems in the Guidance to which Mr Knafler refers are mostly echoes of the difficult conflation in the Regulation itself to which I referred at §24 above.[36]No one, however charitably inclined, would be convinced that behind Regulation 3(3) or the Guidance issued in relation to it lies much sophisticated thought. But I am clear that, in the light of the legislative purpose and the Guidance to which they must have regard, it would seldom be lawful for local authorities to exercise their new power thereunder, whatever its ostensible ambit, to provide accommodation for a person in the fourth class on an indefinite basis, particularly when there was no reason to believe that removal directions would be issued in the near future: such provision would usually be too gross a divergence from the objective of providing temporary accommodation, pending departure and preferably for no more than 10 days, set out in the Guidance. Here Mr Knafler’s task is, by contrast, to show that Islington’s decision to offer accommodation under the Regulation for only 21 days (subject perhaps to a short extension) is itself positively unlawful. In this regard even Mr Knafler fails.[37]Thus the argument turns to the second main “ exception” set out at §15(b) above. The question there posed for Islington was whether the exercise of one of its powers or the performance of one of its duties, otherwise prohibited under the Schedule, was necessary for the purpose of avoiding a breach of a person’s rights under the Convention of 1950.[38]Which powers or duties? Which Convention rights?[39]It is agreed that the relevant power is contained in s.17(3) of the Act of 1989. The power in s.17(3) is subsidiary to the target duty, cast upon local authorities by s.17(1), to safeguard and promote the welfare of children within their area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families. Section 17(3) makes clear that, in discharging that duty, local authorities have power to provide not only for the child but also for an adult member of his family. Two illustrations of this power, established in current case law, are relevant to this case: first the power to accommodate a child with one or more adult members of his family (R on the application of W v Lambeth LBC, C.A., [2002] 2 All ER 901) and second, subject to a submission of Mr Knafler which I will address at §45 below, the power to provide tickets for a child and one or more adult members of his family to return together abroad (R on the application of G v Barnet LBC, C.A., cited at §12 above). Mr McGuire accepts that, were it to be necessary to exercise either of these powers for the purpose of avoiding a breach of Convention rights, the power should indeed be exercised: i.e. the power becomes, in effect, a duty.[40]The Convention right central to this case is a person’s right, set by Article 8.1 but qualified by 8.2, to respect for his private and family life and his home. Concentration has been placed upon the rights of the child and the claimant in this respect; but, as I will explain, the rights of the husband must not be ignored. Mr Knafler has also referred to the rights of the child and of the claimant under Article 3 not to be subjected to inhuman or degrading treatment. But he no longer relies on the claimant’s right to a fair trial under Article 6.[41]Islington has made an offer under s.17 to provide tickets for the child and the claimant to return together to Guyana. The offer is now, more widely, based upon a conclusion for the purpose of para. 3 of the Schedule that it is necessary to make it for the purpose of avoiding a breach of Convention rights, viz. a breach of the right of the child and the claimant to respect for their family life which would arise in the event that they were to remain, without means of support, in the U.K. But such is not the only basis of the offer. The offer was first made in January 2003, before it was realised that the claimant fell within the Schedule. The offer was then wholly based – and must remain more narrowly based – upon the pre-requisite for support under s.17 set within the section, namely upon a conclusion that it would “safeguard and promote the welfare” of the child to travel with the claimant to Guyana. It is clear that the two conclusions which currently combine to form the basis of the offer substantially overlap.[42]I must decide whether Islington’s offer of tickets under s.17 was lawful in the sense, in particular, of whether the decision to make it was both rational and properly reached. But I should also bear in mind what I must not decide. In particular I must not proceed to decide whether it would be unlawful for Islington to refuse to offer accommodation for the claimant and the child under s.17 for longer than the 21 days already offered under Regulation 3(3). I must not decide that question because Islington has been careful not to refuse to make an offer of accommodation under s.17 in the event that the offer of tickets was not accepted by the claimant or was held to be unlawful.[43]In this area of the case Mr Knafler presents two preliminary arguments.[44]His first argument concentrates on the word “necessary” in para. 3 of the Schedule. How, he asks, can it be “necessary” to use other powers in order to avoid breach of the rights of the child and the claimant under Article 8 when it can be avoided by the provision of accommodation in the longer term under Regulation 3(3)? Mr Knafler denies that this argument amounts to a reprise of an already ill-received song. He submits that the power under Regulation 3(3), even if usually exercisable only in the very short term, “may be exercised … from time to time, as occasion requires” (s.12(1) Interpretation Act 1978) and so is, at least, capable of such re-exercise as would render the exercise of other powers not “necessary”. In the light of my conclusion at §36 above that it would seldom be lawful for local authorities to exercise the power under Regulation 3(3) on an indefinite basis, this argument fails: repeated re-exercise to achieve the same result would be just as unlawful. Of course under s.6 Human Rights Act 1998 powers must not be exercised incompatibly with human rights: but, where there are two powers to accommodate, there is nothing unlawful in the identification of one power, rather than of the other, as fit for exercise for the purpose of avoiding breach.[45]Mr Knafler’s second argument is that, although a power to offer tickets for travel abroad falls within s.17, its exercise should be inhibited by consideration of the statutory scheme, exemplified by Schedule 3 itself, that, in respect of persons such as the claimant, it is for the Secretary of State, and not for a local authority, to make arrangements for travel abroad. In my view this argument confuses the power to compel removal, which is exercisable only by the Secretary of State, with the power to facilitate voluntary departure, which is exercisable in certain circumstances by a local authority. Islington has made only an offer, which the claimant may or may not accept. If, as Mr McGuire commends as a rational conclusion, it would safeguard and promote the welfare of the child to return with the claimant to Guyana, would it be unlawful for Islington to exercise its power under s.17 at least to offer tickets for travel thither? On that hypothesis, my answer, like his, is: no.[46]Thus the effect of my judgment is to reduce the case to the following question: was it open to Islington to conclude that the child’s travel to Guyana with the claimant:(a) was necessary in order to avoid a breach of rights under Article 8 (or 3); and(b) would safeguard and promote her welfare?[47]There is no doubt that, in considering rights under Article 8 and the child’s welfare, Islington had well in mind her right and that of the claimant to respect for their family life and, specifically, the desirability that the claimant should be enabled to continue to care for the child. But there was another aspect of rights under Article 8 and indeed of welfare: the rights of the child and the husband to respect for their family life together or, cast in terms of welfare, the value for a child of a relationship with the non-residential parent.[48]When in December 2002 Islington began its assessment, there was no contact between the child and the husband. We now know that, by solicitors, the husband was then already pressing for contact and the claimant was refusing it; but Islington was probably unaware of that. It was aware, by contrast, that the marriage had broken down only recently and that it would probably be easy to trace him. But Islington did not seek to communicate with him. In the ‘core assessment’ the only reference to the child’s contact with the husband was that it was a subject upon which the claimant needed to provide clarity. There is no reference to it in the first decision letter dated 20 January 2003.[49]By the time, however, of the second decision letter dated 27 March 2003, Islington knew more. It knew that on 7 February the claimant and the husband had signed a Contact Centre User’s Agreement and that on 22 February contact, intended to be weekly, had begun at the centre between the child and the husband, although the pattern had quickly been interrupted by illness. But there was still no attempt by Islington to communicate with the husband; and, in the second decision letter, there was again no reference to his contact with the child. When the claimant’s solicitors pointed out its apparent failure to address the effect of travel to Guyana on the child’s relationship with the husband, Islington denied that it had failed to address it and stated that “there will be no impact on family life” caused by a removal to Guyana. In an earlier witness statement Islington’s team manager in charge of the case had stated that the child and the husband “could maintain contact from abroad”.[50]I do not accept the rationality of either of the two statements last quoted and I am driven to the conclusion that Islington’s decision to favour a move to Guyana was vitiated by inadequate consideration of its effect on the child’s relationship with the husband. I do not, however, prejudge what the effect of adequate consideration thereof on the decision would be. There is no doubt that in these circumstances a right to respect for their mutual family life arises both in the child and in the husband: see for example Ciliz v The Netherlands [2000] 2 FLR 469, where a husband’s deportation to Turkey after four years of very intermittent contact with his child in Holland was held by the European Court of Human Rights to be an interference with his right to respect for his family life which, in the circumstances, was not “necessary in a democratic society” even in the interests of maintaining an effective immigration policy. Equally there is no doubt that, in any analysis of a child’s welfare under domestic law, a major consideration in any proposal that a child should live abroad with the residential parent should be any effect on the child’s relationship with the non-residential parent.[51]There is a related but wider point. Indeed Mr Knafler presents it as an entirely free-standing point. He says that, in that by reason of the marriage the husband shares parental responsibility with the claimant for the child, it would be unlawful for the claimant to remove the child from England and Wales without the husband’s consent or the permission of the court. He submits that, even if not rendered specifically unlawful by the Act of 1989, such removal would probably be a criminal offence under the Child Abduction Act 1984 and would certainly rank as a wrongful removal for the purpose of the Hague Convention 1980 set out in Schedule 1 to the Child Abduction and Custody Act 1985. For that reason alone, submits Mr Knafler, Islington’s decision was unlawful. Mr McGuire’s response is that Islington’s decision was not, indeed could not be, to effect the child’s removal but was only to make an offer to facilitate it; and that, if the mother rejected it on the basis that she lacked the husband’s consent to any removal and had failed (or would fail) to procure the permission of the court, such would be an unassailable reason for rejection which would clearly require Islington to think again. I prefer to treat Mr Knafler’s point as but part of Islington’s unlawful failure to consider the role of the husband before reaching its decision. It clearly failed to pay any regard to the need for the claimant to obtain his consent or the court’s permission before removing the child. And, before reaching any such decision, a local authority must, for this specific reason (where it arises) as well as for other obvious general reasons, seek to obtain the views of every person with parental responsibility for the child unless (perhaps) it is clear that such a person has chosen to move entirely and apparently permanently out of the child’s life.[52]But in my judgment Islington’s decision to offer tickets is unlawful for a second reason. It relates to the insufficiency of the material before it as to the likely circumstances of the child and the claimant in Guyana.[53]According to Islington’s note of the second meeting with her on 7 January 2003, the claimant explained that her family in Guyana comprised an elderly mother and a brother and his family, with whom the mother, who was very ill, lived. There is no indication in the note – nor does Islington allege – that the claimant indicated that it would be possible for her and the child to stay with them or indeed with any one else in Guyana. The note does however indicate that the claimant said that she would be unable to find a job there and that, even if she did so, there would be nobody to care for the child. That was the sum of the material before Islington when it wrote its first decision letter dated 20 January, in which it suggested that the child and the claimant would “be better supported by extended family members in Guyana”. In my view the material was insufficient to justify that suggestion.[54]Four days after writing that letter Islington telephoned the Guyanese embassy and elicited some general information about the availability of jobs and of welfare benefits, apparently of a very limited character, in Guyana.[55]In the ‘core assessment’, completed on 5 December 2002 and updated on 30 January 2003, Islington – at some stage – wrote as follows:
“[The claimant] to consider going back to Guyana where she has extended family network support and the opportunity to work. SSD is of the view that this would be in [the child’s] best interests and will proceed with exploring the viability of this option. This will include contacting extended family in Guyana.”
Later it added:
“[The child] has an uncle in Guyana with whom she and her mother can stay temporarily.”
[56]Islington never contacted any member of the claimant’s extended family in Guyana. In a witness statement dated 27 February 2003 the team leader, whose integrity is beyond question, wrote that the claimant had refused several requests on the part of Islington for her to provide contact details of the extended family. This the claimant denies: she says that she was first asked for such details on 18 February and provided them there and then. There is no copy letter nor even any internal Islington memorandum which suggests any earlier request for the details. At all events, in the light of this factual dispute, the claimant’s solicitors wrote to Islington by letter dated 7 March and therein provided the names and addresses of the mother and the brother. Even thereafter Islington made no attempt to contact either of them.[57]Meanwhile, in two statements signed in these proceedings, the claimant stated that the accommodation in which her brother, his wife and their two daughters lived and into which their mother was about to move was a two bedroom flat and that it would be impossible for her and the child also to live there. She reiterated that she would be unable to work because of the child’s need for care.[58]In the above circumstances, and notwithstanding the considerable uncertainties surrounding their continued life together in England to which Islington rightly had regard, there was wholly insufficient material to justify its conclusion that the claimant and the child would be able to live adequately in Guyana; thus that it was necessary for the purpose of avoiding a breach of their Convention rights to exercise a power to offer them tickets to go to live there; and that to live there would safeguard and promote the child’s welfare.[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. - - - - - - - - - - - - - - MR JUSTICE WILSON: I do want to apologise to counsel for the late arrival with them of this judgment of mine. I am supposed to be on vacation this week, as well as last week, so I am afraid it has not been logistically possible to get the judgment to them before noon or possibly, in the light of their other commitments, afternoon. So, I assume that they will not have had time to digest it in any detail and I hope that they will not have spotted any obvious errors. But if they have, could they now identify them? MR MCGUIRE: The only error I have spotted is after the name Bryan McGuire on the front page, if we could put, "and Mr Paul Turner." MR JUSTICE WILSON: Of course, I am so sorry about that. Mr Knafler, in the light of this judgment, are you and Mr McGuire agreed on what the order should be? MR KNAFLER: We have had very limited time, entirely my fault, I am going to ask for the decisions of 20th January and 27th March to be quashed. I think Mr McGuire is agreeable to that. MR JUSTICE WILSON: Yes. MR KNAFLER: I am going to make an application for the costs of the proceedings. MR JUSTICE WILSON: Right, well, thank you. MR KNAFLER: Because we applied to quash those decisions and we have succeeded. MR JUSTICE WILSON: Well, that is true enough. Mr McGuire? MR MCGUIRE: We agree on the first part, but we are apart on the second. On the issue of costs there are two possibilities: one is a split costs order, the other is that the Gordian knot be cut, and we say no order as to costs. The starting point in this is to see that the parties arrive for a judicial review before Silber J, on the basis that the claimant's own case as to her immigration status, namely that she had lawfully applied to extend her time to apply to be here, was accepted. On that basis the authority made a decision under section 17, which turned out to be false. Whereas, of course, one would not expect us to know all the ins and outs of her immigration status, the reality is that rather like the person who says they did not know they had an elephant in the garden, she really ought to know that the reality is here that she was here on a six month temporary visitor's visa in 1998, and had never been given any reason by anyone to think she could stay. MR JUSTICE WILSON: It took some time for Miss Stern to explain to me why it was that with the appeal pending and the representations outstanding, she was not still lawfully here. MR MCGUIRE: I could see that -- I will move on to my second point -- I do not abandon that. The second is that if one looks at the decision, at the claim form, one finds that every word has been crossed out as it stood before Silber J on the date of the hearing. So there is nothing there that was relied upon, although the argument as to section 17 and one way tickets was revived in what I described as emasculated form, only then to be rejected by your Lordship. So the reality is that everything that was raised by that time was rejected, and formed no part of the decision today. The authority had made a lawful decision on the basis of the information before it, or at least at any rate, no point had succeeded now which had been taken up to that stage. The question that has led to the downfall of the authority in these proceedings really amounts to: what about the father? So the question we are concerned -- MR

JUSTICE WILSON:

"What about the father?" and "
What about Guyana?". MR MCGUIRE: Well, I follow that. Well, dealing with, "What about the father?" first. That never did arise, specifically, as a matter complained of, even in the latest version of the claim form, although I accept correspondence changed places, and again to avoid any dispute between counsel, I accept that we were aware, after the directions hearing, following the aborted first hearing before Silber J, that the question, "What about the father?" would be one that would need to be addressed. So, informally, that matter has been on the agenda or been available for -- well, there to be considered only between that hearing following the first full hearing and now. I say that in reality the way the case was presented was first to raise that point. Second, to build upon that point with such matters as the Child Abduction Act is really to take a new strand to their case and to develop that. As I say, in reality that is such a late introduction of a new factor that should be reflected in costs. MR JUSTICE WILSON: Is there not a wider point that you could make. Half this case was about Regulation 3(3) and the other half was about section 17. You have won on Regulation 3(3). MR MCGUIRE: That is my third and, as I say, main point, that we have won on the major issue that has been debated. MR JUSTICE WILSON: I am not sure about the 'major'. You have won on what, at the moment, I consider to be the issue which took up at least half the time. MR MCGUIRE: Quite so, that is right. MR JUSTICE WILSON: You might say that you would in principle, subject of course to Legal Aid protection, you would be in principle entitled to your costs of that and if your other arguments are wrong Mr Knafler would be, in principle, entitled to his costs of the other half, and the two broadly cancel out. MR MCGUIRE: Quite so. Might I say I won on the point of principle and my learned friend has won on the assessment point in two respects. Perhaps the best way forward is no orders to costs, to save the court the trouble of setting one set-off against the other, with two public bodies standing behind them watching the result. MR JUSTICE WILSON: Thank you. Mr Knafler? MR KNAFLER: My Lord, I will just address the last of those three points. It is quite correct to say that at least half of the argument in court related to the proper approach to Regulation 3(3), at least half of the argument, but having said that, argument in court is only the tip of the iceberg in relation to what the case actually consists of. If your Lordship looks at the witness statements and the work carried out day-to-day by the solicitors, right from the start of the case they were attacking, on a day-to-day or a week-by-week basis, the assessments and looking at the facts relating to Guyana, and the facts relating to the father, which contrary to Mr McGuire's submission, if I understood it correctly, always were two points which should divide the parties right from the start. Although, of course, it is true that before your Lordship at least half of the argument related to Regulation 3(3), but that does not actually reflect the amount of time and energy spent in the preparation of the whole case. Very little argument was needed to be debated by me in relation to the assessments, because I took the view, as the advocate representing Mrs M, that the solicitors had already done such a good job on that, that in fact it really spoke for itself when one came to trial. So, in my respectful submission, the claimant, having succeeded in her challenge, ought at the very least to recover 50 per cent of her costs. That is my submission. MR JUSTICE WILSON: Well, thank you. The January decision, even on the then supposition of lawful residence in the UK, was flawed. The challenge then issued was rightly issued. There was a sea change in the case as a result of the Secretary of State's presentation of the claimant's immigration position in March. I am not sure how much blame can be ascribed to the claimant in that regard. I am quite sure that no blame can be ascribed to Islington in that regard. So, the arguments had to be reassembled and that was costly. I am not at all sure that it would be fair to make Islington pay any of the costs occasioned by that substantial development. Nevertheless, there was the March decision and that, like the January decision, was flawed. On the other hand, the claimant took an important but, as I have held, an invalid point under the regulations of 2002, and although Mr Knafler says that the costs occasioned at the hearing must not obliterate the preponderance of costs on other issues incurred earlier, it is costs at hearing, with counsel's fees and refreshers and solicitor's charges mounting up, that are, in my opinion, the really burdensome part of the costs of any litigation. So we have a situation where a long two-day hearing was devoted, as Mr Knafler rightly says, at least as to one half, to an issue upon which Islington has prevailed. Subject to particular protection of publicly funded parties, and I can put that to one side for this purpose, one would say, in principle, that Islington was entitled to its costs of that issue. Just as the claimant was entitled to her costs of the issue under section 17 relating to both decisions. Taking a broadbrush I think that the two entitlements cancel out. There will be no order as to costs of this application. MR KNAFLER: My Lord, I have been instructed to ask for permission to appeal on the point that your Lordship just described as an important point, on the construction of Regulation 3(3). If I can very briefly explain why. First of all, in practical terms, we fought this litigation before your Lordship on every single point. We did not refuse to engage with the section 17 assessment, because we took the view that it should never have been entered upon because of the construction of Regulation 3(3). However, at this stage it is worthwhile appreciating that if we are right on Regulation 3(3), then the further assessment under section 17, that your Lordship's judgment entails, is otiose and unlawful and should not be carried out. So there is a preliminary issue -- well, if anybody considers our appeal is arguable, then there is a genuine preliminary issue to be considered here, before Islington go to the expense and trouble of carrying out a further assessment. On that point, if I may just say very briefly, because your Lordship has heard all the arguments about this and delivered a detailed judgment, but if I could just make two very short points: we would respectfully be suggesting that Regulation 3(3) does not in fact conflate accommodation for EEA cases and accommodation for other cases. It is true that both types of cases are within Regulation 3, but in our respectful submission the two cases are kept apart by the different language used in those two different situations, and are not conflated as they are in the guidance. Secondly; just what the concept temporary can mean. Our respectful submission would be that because something is temporary that does not mean it cannot last quite a long time. If you look, for example, at the temporary admission that the Secretary of State grants to people who come to the UK, that can last for many many years. If you look at temporary accommodation granted to homeless persons, including asylum seekers, as used to be under the 1993 Act, they used to be granted temporary accommodation, and that would last until their asylum claim was determined. So, on the meaning of temporary, we have an argument on that. Then we have another, I was just really drawing attention to two slight developments to the arguments that your Lordship has already heard. Then we have our basic arguments, including the ill-received song, repeated twice. I think it is clearly a point of considerable general importance. Your Lordship has clearly rejected it, but not, as I understand it, in terms to suggest that it is completely unfounded or that another tribunal might not well take a different view. MR JUSTICE WILSON: Mr Knafler, of course you have won in the result. I do appreciate that very occasionally there can be appeals by successful litigants, but tell me about the jurisprudence on that. Would that not be a particular reason for my leaving the question of permission to appeal to the Court of Appeal. MR KNAFLER: My Lord, I have not had the time to get the jurisprudence to court. But can I ask your Lordship to look at it on a principle basis. Say Islington tomorrow, for example, say: come along for an assessment, we want to reassess you under section 17. Our response to that would be, left to our own devices: well, you are not entitled to carry out an assessment under section 17, to decide whether or not to provide us with travel back to Guyana. That jurisdiction simply does not arise. You have to be accommodating, all things being equal, us being destitute under Regulation 3(3). Now, we cannot say that, at the moment, because of your Lordship's judgment. Therefore we would be bound to undergo a further assessment. Now, what that further assessment will result in is speculative, but let us just assume for one moment that Islington adhered to their desire to make the offer that they have already made. We will then be back, assuming we continue not to accept that that was a lawful decision, we would then be back before the High Court again, where we would, in effect, be forced to run the same sort of arguments that we have run today. The Regulation 3(3) point is really quite a discrete point. It is a point that is preliminary to the whole concept of carrying out a section 17 assessment, and it is also a discrete point that does not depend on the facts of any particular case. It effects everybody who falls within category 4 of being an unlawful -- somebody unlawfully present in the country. For those reasons, in my respectful submission, because of the general discreteness and importance of the point, and because of the discreteness of the point in relation to this particular claimant, it ought to be dealt with by the Court of Appeal; (a) so that the legal position can be made clear in respect of everybody, and (b) so that the future conduct of relations between Islington and Mrs M can be conducted on a legally correct basis. At the moment, with respect to your Lordship's decision, our position would be that any further section 17 assessment would be unlawful. MR JUSTICE WILSON: Mr Knafler, thank you for that attractive presentation, but I am going to refuse your application for permission and leave it to the Court of Appeal to decide, if invited, whether to take this point within your successful application up. MR KNAFLER: My Lord, can I ask for a detailed assessment for the claimant's funded costs? MR JUSTICE WILSON: Of course, there will be no order as to costs then, save that the costs of the claimant, being publicly funded, be subject to detailed assessment. MR KNAFLER: Thank you. MR JUSTICE WILSON: Anything more in the case of M from your point of view, Mr Knafler? MR KNAFLER: No. I was just going to draw attention to the other case. MR JUSTICE WILSON: I had not forgotten it. MR MCGUIRE: I was going to take the precaution of asking for permission to appeal. I accept that my learned friend has concerns over that in principle, that matters on which the authorities (inaudible) questions of rationality and the proper approach to be taken, and, of course, one would need to pay careful regard to what a senior family judge has said about matters relating to an assessment, and so I would not seek to make good any submission on those grounds at this stage. I simply ask because now is the convenient time to do so. MR JUSTICE WILSON: It is the convenient time so the order will read that the applications, both of the claimant and of the defendant, for permission to appeal to the Court of Appeal, be refused. MR MCGUIRE: Thank you. MR JUSTICE WILSON: Any other matters from your perspective, Mr McGuire? MR MCGUIRE: My Lord, no. MR JUSTICE WILSON: Miss Stern, good afternoon. MISS STERN: Good afternoon, my Lord. I have absolutely nothing to say, other than might I be able to be released while the -- MR JUSTICE WILSON: Well, of course, so will Mr McGuire be, I do not think he is involved in that either. That is the end of the case of M. Thank you for your assistance.