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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

15 APR 2013

R (on the application of KA) v Essex County Council [2013] EWHC 43 (Admin); (2013) PLLR 024

Immigration - Support - Appeal - Leave to remain

The withdrawal of support for the Claimant whilst she illegally remained in the UK with her family had the effect of depriving her of the right to an appeal against the decision to grant her leave to remain. The failure to consider the consequences of the decision to withdraw support thus resulted in the decision being quashed.

18 January 2013

Administrative Court

Robin Purchas QC

(1)        The Claimant sought judicial review of the Defendant's refusal to provide accommodation and support to her and her children pursuant to the Children Act 1989. The Claimant is a Nigerian citizen who was illegally in the UK.

(2)        The Claimant contended that under the Nationality Immigration and Asylum Act 2002, the legal framework provided a right of appeal against the issue of removal directions. It was submitted that by denying the Claimant support, she and her family would have to return to Nigeria, thereby depriving them of their procedural right of appeal.

(3)        The Claimant entered the UK illegally in 2002. She then had three children, who were all born in the UK. All of the Claimant's applications for leave to remain have been rejected.

(4)        The Claimant's challenge was made on the following grounds:

(a)        she had made clear that she and her family would not voluntarily return to Nigeria;

(b)        when the decision was taken to withdraw their support, a further application for leave to remain was intended to be made, and the Claimant had, in any event, been intending to appeal the UK Border Agency's immigration decision;

(c)        withdrawing support inevitably compelled the Claimant and her family to leave the UK;

(d)        this would deny the Claimant the right to their procedural safeguards in relation to their Article 8 ECHR rights;

(e)        there was no consideration of the effect of withdrawal of support on the procedural safeguard of an appeal;

(f)        there were prima facie strong grounds to support an appeal

(5)        HELD: The 1989 Act required an authority to determine if denying support would breach a convention right and each determination was required to be fact specific. The Court recognised that the procedural right to appeal was a right that the Claimant was entitled to in order to protect her and her family's Article 8 rights.

(6)        The Court considered that it was also plain to the Defendant that by removing support, the consequence would be the family's return to Nigeria, and they would be deprived of their right to an appeal. It was held that the Defendant ought to have provided support to the Claimant, unless her appeal was obviously hopeless or abusive. The Court commented that the ‘interests of maintaining a fair, coherent and effective system for protection of these important convention rights would significantly outweigh the particular implications for continuing support in appropriate cases'.

(7)        The Court could not find that there was anything in the circumstances of the case that demonstrated the decision to have taken into account the effect on the Claimant and her family's rights to procedural protection. The decision was held to be flawed and was therefore quashed.

Claim succeeded.

Decision quashed.

Key Paragraphs

[50] - Fact specific.

[54] - Entitled to appeal.

[55] - Consequences plain.

[56] - Hopeless or abusive.

[59] - Conclusion.

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