The claimant, an Albanian national, entered the United Kingdom and sought asylum as an unaccompanied child. The local authority accommodated and looked after him as a child in need under the Children Act 1989. The claimant’s asylum claim was subsequently refused and his appeal rights were exhausted. Thereafter, when the claimant was 21 years old, the local authority conducted a human rights assessment in order to determine whether to continue or discontinue support to him. On the basis of the assessment the authority concluded that, under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, it no longer owed a duty to the claimant under the 1989 Act since his asylum claim had been rejected and continued support was not required to prevent a breach of his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, there being no legitimate reason for the claimant to remain in the UK and no barrier to his returning to Albania. Subsequently, an addendum human rights assessment recorded that the claimant had made submissions to the Home Office in furtherance of a fresh human rights claim for leave to remain and that the Home Office had provided him with accommodation as a failed asylum seeker. Thereafter, the claimant’s solicitors contacted the authority to request a fresh human rights assessment in light of ongoing safeguarding concerns including an ongoing significant risk of exploitation, enclosing a report by a forensic physician and a report on trafficking. The provision of a personal adviser was requested as well as a pathway support plan for the claimant as a care leaver. By its reply the authority indicated that the claimant’s immigration status was “appeal rights exhausted” and that, where the Home Office had not accepted his further application as a fresh claim but only as further submissions, the authority was unable to provide further support. The claimant sought judicial review challenging the lawfulness of the authority’s decision on the ground, inter alia, that the authority had been obliged to conduct a fresh human rights assessment where support was requested by a person who, but for Schedule 3 to the 2002 Act, would be entitled to support under the 1989 Act. Following the hearing of the claim, the parties proposed a consent order by which the authority agreed to conduct the requested human rights assessment, but the court continued to judgment on the basis that the claim raised a point of public interest.
On the claim for judicial review—
Held, claim allowed. Where support was requested by a person who, but for Schedule 3 to the 2002 Act, would be entitled to support under the 1989 Act, the local authority was required to consider that request. In applying the prohibition in Schedule 3, the authority had to consider that the prohibition did not prevent the exercise of a power or the performance of a duty if and to the extent that it was necessary for the purpose of avoiding a breach of person’s rights under the Human Rights Convention. It could not adopt a blanket rule that it simply would not consider the request. However, the local authority would not be required to undertake a human rights assessment in every case when support was requested, no such assessment being required by the legislation or the statutory guidance. Instead, an assessment would be triggered by specific events, for example where a former unaccompanied child who had turned 18 had exhausted their appeal rights and so had no lawful basis to remain in the UK. If the local authority had already conducted a human rights assessment in such circumstances, it might readily decide on a further request for support that there would be no breach of the person’s human rights by its refusal to exercise a power or to perform a duty in relation to support, and that the prohibition in Schedule 3 to the 2002 Act therefore applied. However, a blanket refusal on the basis of Schedule 3 would not suffice and, in other cases, the local authority would need to conduct a human rights assessment to determine whether the Convention exception in paragraph 3 of Schedule 3 applied. Accordingly, the local authority was not entitled simply to take the view, as it seemed to have done in the present case, that it was not obliged even to consider the claimant’s human rights issues because of Schedule 3 of the 2002 Act. Given that the fresh human rights claim for leave to remain did not seem either abusive or hopeless, and the claimant’s representatives had produced additional evidence which had not been available at the authority’s previous human rights assessments, all of which evidence raised possible human rights issues, the local authority, had it approached the issue on the correct basis, might well have decided that the proper way to assess whether support was necessary in order to avoid a Convention breach was to undertake a human rights assessment. It followed that the parties’ agreement that the authority would now conduct a human rights assessment was approved (paras 57–61, 64).
Irena Sabic KC and Alex Grigg (instructed by Youth Legal) for the claimant.
Hilton Harrop-Griffiths (instructed by Head of Legal Services, Croydon London Borough Council) for the local authority.