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The Claimant succeeded in challenging the Defendant's refusal to provide her and her mother support. There was no prohibition to the provision of support because there had been no application for asylum under article 3 ECHR.
28 February 2013
John Powell QC
(1) The Claimant's mother, Ms N, is a Ugandan national who entered the UK in 2001 on a student visa. She made an application to remain in 2007, but this was refused. The Claimant is a child who suffers from sickle cell anaemia, which requires stability and routine in order to manage the condition. This case was brought by the Claimant and her mother pursuant to section 17 of the Children's Act 1989.
(2) The Claimant contended that the Defendant was obliged to provide support, including accommodation, pending the determination of her mother's appeal against the UK Border Agency's refusal of her application for indefinite leave to remain.
(3) The Defendant contended that it was prohibited by section 122(5) of the Immigration and Asylum Act 1999 to provide such support. The Defendant also relied upon the provisions contained in Schedule 3 of the Nationality, Immigration and Asylum Act 2002, stating that it was prohibited from providing support and assistance unless it was necessary to avoid a breach of the Claimant's ECHR rights.
(4) On 16 September 2011, an assessment was undertaken by the Defendant, which concluded that the Claimant was a child in need. It was recommended that the Defendant should provide the Claimant and her mother with accommodation.
(5) By letter dated 19 September 2011, Ms N was informed that accommodation would not be provided after 30 September 2011, and the Defendant offered to assist her to returning to Uganda with the Claimant. At this point, due to non-payment of the application fee, Ms N's application for leave to remain was returned.
(6) Ms N had lodged an appeal against the refusal of her application for indefinite leave to remain, and at the time of this hearing, the appeal remained outstanding.
(7) The duty to provide an appropriate range of services to a child in need, as per section 17(1) of the Children's Act 1989, is supplemented by section 11 of the Children Act 2004 to make arrangements having due regard to the need to safeguard and promote the welfare of children.
(8) The Defendant relied upon a claim for asylum having been made under article 3 ECHR as engaging the prohibition to provide support under section 122(5) IAA 1999.
(9) HELD: The Defendant had had to consider whether Ms N had asserted a right of asylum based on either the Refugee Convention or article 3 ECHR. Looking at the application for leave to remain and the UK Border Agency's refusal decision, the Court held that the Defendant did not have reasonable grounds to consider that an asylum claim based on article 3 ECHR had been made. The application neither expressly nor impliedly made the article 3 claim.
(10) The margin of error permitted in determining if the Defendant had reasonable grounds for making its decision was held to have been exceeded.
(11) The Claimant's challenge to Newham's refusal to provide support thus succeeded. The Defendant was held not to be prohibited from providing support for the Claimant and her mother.
 - No article 3 ECHR asylum claim.
 - No article 3 asylum claim.
 - Margin of error exceeded.
 - Conclusion.
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