| LOCAL GOVERNMENT — Powers — Failed asylum seekers — Applicants in need of assistance — Whether local authority under duty to provide assistance — Whether applicants entitled to support from central government — National Assistance Act 1948, s 21(1A) (as inserted by Immigration and Asylum Act 1999, s 116)
R (AW and others) v Croydon London Borough Council and another [2007] EWCA Civ 266
CA: Judge, Laws and Scott Baker LJJ: 4 April 2007
Where a failed asylum seeker satisfied the criteria of s 21(1) and (1A) of the National Assistance Act 1948 in that he or she was “infirm destitute” and the provision of support was necessary for the purpose of avoiding a breach of his or her Convention rights within the meaning of para 3 of Sch 3 to the Nationality, Immigration and Asylum Act 2002, that provision fell to be made by a local authority pursuant to s 21 of the 1948 Act.
The Court of Appeal so held dismissing appeals by Croydon London Borough Council and Hackney London Borough Council from the decision of Lloyd-Jones J [2006] EWHC 2950 (QB) hearing preliminary issues that, inter alia, provision for the support of the applicants, AW, A and Y, as failed asylum seekers, fell to be made by the local authorities pursuant to s 21 of the National Assistance Act 1948.
LAWS LJ, giving the judgment of the court, said that assuming that the failed asylum seekers were entitled (by force of para 3 of Sch 3 to the Nationality, Immigration and Asylum Act 2002) to support from a local authority under s 21 of the 1948 Act or from the Secretary of State under s 4 of the Immigration and Asylum Act 1999, the question posed by the sole issue in the case was—which? Counsel for the Secretary of State set out an elaborate chain of reasoning through the interlocking statutory provisions which the judge below accepted and which led to the conclusion that persons in the position of the applicants were to look first to the local authority under s 21 of the 1948 Act. Their Lordships agreed. The division of responsibility for the support of asylum seekers and failed asylum seekers was a difficult and contentious area. R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 concerned an asylum seeker, not a failed asylum seeker. The contrast there was between the Secretary of State’s function under s 95 of the 1999 Act and that of the local authorities under s 21 of the 1948 Act, whereas in the present case it was between s 4 and s 21. However in concluding that the proper legal recourse for the infirm destitute asylum seeker (“destitute plus” in the patois the lawyers had adopted) was under s 21 and not s 95, Lord Hoffman followed a chain of reasoning to which the judge’s approach in the present case was clearly analogous. The Westminster City Council case was important for the purposes of these appeals, first, because the reasoning of the judge below followed that of Lord Hoffman. Secondly, the case demonstrated that the enactment of s 21(1A) was intended to effect a distribution of responsibility between the Secretary of State and local authorities, assigning the duty to provide for the “able-bodied destitute” to the former, but retaining the duty to provide for the “infirm destitute” on the shoulder of the latter. The appeals would be dismissed. There was nothing to show that the legislature intended to distribute responsibility for the support of failed asylum seekers between central and local government in a radically different manner from the arrangements which the Westminster City Council case showed were made in relation to asylum seekers. But the distribution of responsibility at the core of the present case could surely have been provided much more clearly and simply.
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