SCOLAG January 2006: Administrative Law Update

Posted: February 16, 2006

Download Full Article: SCOLAG Journal Issue 339.Jan06.pdf

A continuing review of significant welfare law and other relevant cases from Scotland and England (last appearing in October 2005) by Robert Sutherland, Advocate. This collection covers decisions issued to the end of November 2005.

Where known, references are either to the neutral citation provided by the court ( e.g., CS=Court of Session; OH=Outer House; IH=Inner House; EWHC=English High Court; CA=Court of Appeal;  UKHL=House of Lords; UKPC=Privy Council), or to the date of the judgement, or to a published report appearing in one of the main series of law reports).

Asylum Support
R v Asylum Support Adjudicator ex p. B, [2005]
EWHC 2017 (Admin)
The applicant was a citizen of the Czech Republic who had unsuccessfully claimed asylum. In 2004 the Czech Republic became a member of the European Economic Area and the applicant became ineligible for continued asylum support as a result of s54 and Sched 3, Nationality, Immigration and Asylum Act 2002. The Secretary of State notified the applicant that asylum support provided to him and his dependants would be terminated. The applicant argued that the Secretary of State had a continuing duty to support his children under s122, Immigration and Asylum Act 1999 because of para2(1)(b) of Sched 3, 2002 Act.
Held The duty under s122, 1999 Act to provide asylum support to the child of a person was dependant on that person being eligible for asylum support under s95, 1999 Act. Since the applicant was no longer eligible there was no duty under s122 as the conditions for its operation were not met. That did not affect the child's eligibility for support under s17, Children Act 1989.

R v Secretary of State for the Home Department ex . Adam, [2005] 3 WLR 1014
Three asylum seekers had successfully challenged decisions refusing to provide them with any support [see cases of Limbuela, Tesema and Adam, 2004 SCOLAG 86 and 87]. An appeal by the Secretary of State was unsuccessful ([2004] QB 1440).
Held The purpose of s55(5)(a), Nationality,Immigration and Asylum Act 2002 was to enable the Secretary of State to exercise powers to provide support under ss4, 95 and 98, Immigration and Asylum Act 1999 and accommodation under ss17 and 24, 2002 Act. Before the stage that inhuman or degrading treatment had been reached s55(5)(a) enabled the Secretary of State to step in so that he could avoid the breach. Where the inhuman or degrading treatment resulted from acts or omissions for which the state was directly responsible there was an absolute obligation on the state to refrain from such conduct. Treatment was inhuman or degrading if it denied the most basic human needs to an individual to a seriously detrimental extent. A decision to withdraw support from a person who would otherwise qualify because he was or was likely to be come destitute was an intentionally inflicted act for which the Secretary of State was directly responsible. He was also directly responsible for all the consequences that flowed from that decision bearing in mind that asylum seekers in that position were also prohibited from working. The withdrawal of support was not in
itself inhuman or degrading, but it became so once the margin was crossed between destitution and the condition that resulted from inhuman or degrading treatment. The test of whether the margin was crossed was whether the treatment that the asylum seeker was subjected to by the package of restrictions and deprivations was so severe that it could properly be described as inhuman or degrading within the meaning of Art 3, ECHR. There was no doubt that the threshold might be crossed where an asylum seeker had no means, no alternative source of support, was unable to support himself, and as a result of the deliberate action of the state was denied access to shelter, food or the basis necessities of life. As soon as an asylum seeker made it clear that there was an imminent prospect of a breach of Art 3 because the conditions he was having to endure were on the verge of reaching the necessary degree of severity the Secretary of State had the power under s55(5)(a), 2002 Act and the duty under s6, Human Rights Act 1998 to act to avoid a breach of Art 3. In each of the cases there had been sufficient evidence to justify a conclusion that there was an imminent prospect that there treatment would lead to a condition that was inhuman or degrading.

Children
Langley v Liverpool City Council, [2005] EWCA Civ 1173
The claimants challenged the removal of three children into the care of foster parents. An emergency protection order (EPO) in respect of the children had been granted to the local authority under s44, Children Act 1989. The police subsequently removed one of the children and delivered the child to foster parents. The local authority then removed the other two children and delivered them to foster parents. After a trial the Council were found to have acted unlawfully and were liable for assault and false imprisonment and breaches of rights under Art 8, ECHR. The Chief Constable of Merseyside Police was also found to have acted unlawfully in relation to the removal of one of the children and that he was liable for assault and false imprisonment. The basis of the decision was that if an EPO had been granted the police could not subsequently invoke emergency powers under s46, 1989 Act but required to have obtained a warrant under s48(9), 1989 Act. A claim that the Chief Constable had been in breach of Art 8, ECHR was rejected.
Held There was nothing in the 1989 Act to expressly prohibit the police from invoking s46 where an EPO was in force. It could not be implied from the powers available under ss46, 47 or 48 that s46 could not be relied upon where an EPO was in force. Where a police officer knows that an EPO is in force the power of removing a child should not be exercised under s46 unless there are compelling circumstances to do so. The applicant in an EPO is given parental responsibility whereas a child in police protection does not give the police parental responsibility. The statutory scheme gives primacy to s44 powers which involve a more elaborate, sophisticated and complete process of powers under the supervision of the courts. There had been no compelling reasons for the s46 powers to have been exercised by the police. The judge had been wrong to reject the claim that the police had acted in breach of Art 8, ECHR. The police action had been unlawful and was not 'in accordance with the law'. It did not matter that the police action had not been disproportionate. The local authority had not been wrong to seek the EPO, nor did it involve any breach of Art 8, ECHR. Their concerns for the safety of the children at the time they acted were justified. The court should extend a measure of deference or latitude to the decision making of the local authority in respect of the difficult decision to be made and the exercise of judgement involved. The Council were not at fault in removing the two children they delivered to the foster parents. However the Council were liable for the removal of the child by the police because this had been done with their prior authorisation.