Birmingham City Council v Clue [2010] EWCA Civ 460

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This case looked at the provision of local authority support to a family with an immigration application pending.

Amalea Clue and her eldest daughter were Jamaican nationals. They were granted leave to enter the UK as visitors for 6 months in December 2000. Their purpose was to visit the claimant’s aunt. At the expiry of the 6 month period, the claimant applied for leave to remain as a student. This application was refused and the subsequent appeal was dismissed in March 2003. Ms Clue remained in the UK and had three children with her British partner. No steps were taken to remove her or her children and they received support from her partner until 2007 when the relationship broke down.

In October 2007, Ms Clue applied to the Home Office for indefinite leave to remain for herself and her four children to remain in the UK, under Article 8 of the European Convention on Human Rights, which protects the right to respect for his private and family life. While this application was pending, she applied to Birmingham City Council for financial assistance under section 17 of the Children Act 1989 on the grounds that she was destitute. Birmingham withheld support under Schedule 3 of the Nationality Immigration and Asylum Act 2002, as Ms Clue was unlawfully in the UK and the Council did not find that this refusal would breach Ms Clue and her children’s rights under the Convention.

Relevant points in the judgment

  • In his case, it was held that Birmingham City Council’s refusal to provide financial assistance and accommodation to a family while their immigration application was pending resulted in a breach of the family’s right to respect for family and private life under article 8 of the European Convention of Human Rights.
  • The local authority must investigate whether other sources of accommodation and support are available to the claimant, and whether the withholding of assistance will cause a person to suffer from destitution amounting to a breach of Convention rights (typically article 3). If it is satisfied that there are no other sources of assistance which would save the claimant from destitution amounting to a breach of a Convention right, then it “must then decide whether there is an impediment to the claimant returning to his country of origin” (para 55)
  • Upon learning that the claimant had made an application for indefinite leave to remain on grounds which raised article 8 of the Convention, the Council should then have considered whether the application was abusive or hopeless, and, if not, “they should not have refused assistance pending the determination of the application” (para 76). The Council’s decision not to provide Ms Clue with support effectively determined her application for leave to remain by making it impossible for her to stay in the UK

Read the full judgment