2011 08 Migrants

Thursday 1 September 2011

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R (SL) v City of Westminster [2011] EWCA Civ 954 (Laws, Richards and Rimer LJJ): the Court of Appeal held that SL, a failed asylum-seeker, had been entitled to residential accommodation, on the basis that he suffered from PTSD and depression and required weekly monitoring by his care co-ordinator as well as some help by voluntary sector counselling groups and a befriender. The Court held that this amounted to the provision of “care and attention” for the purposes of section 21 of the National Assistance Act 1948: “It is to be noted that care and attention within the subsection is not limited to acts done by the local authority’s employees or agents. And …… the subsection does not envisage any particular intensity of support in order to constitute care and attention”. This care and attention was not “otherwise available”, otherwise than by the provision of residential accommodation, because “care and attention is not “otherwise available” unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation”: “it would, as Mr Knafler submitted (skeleton argument paragraph 30), be absurd to provide a programme of assistance and support through a care co-ordinator “without also providing the obviously necessary basis of stable accommodation””. Stephen Knafler QC appeared for the appellant. Adrian Berry made written submissions on behalf of The Medical Foundation.

R (AN) v Secretary of State for the Home Department; R (FA) v Secretary of State for the Home Department, extempore judgment 27/7/2011 (Mitting J): The linked representative claims challenged the SSHD's conduct of illegal entry interviews at port on unaccompanied asylum seeking children in circumstances where they are not afforded procedural and substantive safeguards under the Immigration Rules owed to children claiming asylum in the UK. In FA's case, the interview delved into the substance of his asylum claim. Other children's evidence (18 in total) were filed in these claims and the Judge agreed that they show the same pattern of questions asked which delved into the substance of the children's asylum claims. The interviews were subsequently relied upon by the SSHD to make adverse findings of credibility against the unaccompanied children and to consequentially form the basis for rejecting their asylum claim and / or further leave to remain. The Court held that in circumstances where the child claims asylum directly or intimates a claim for asylum, questioning should stop in respect of that topic on immediate effect. Interviews which went beyond the registration of an asylum claim into the substance fall within the remit of Immigration Rules 352 and 352ZA, which afford specific safeguards to children in processing their asylum claims. The children were lawfully detained under the SSHD's powers to detain as their means of arrival, concealed in the back of a refrigerated lorry constituted the most exceptional circumstances and the purpose as the SSHD explained was to allow them to recover before carrying out an interview in respect of them.

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