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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AC, R (on the application of) v Birmingham City Council [2008] EWHC 3036 (Admin) (18 November 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/3036.html Cite as: [2009] 1 FLR 838, [2009] Fam Law 200, (2009) 12 CCL Rep 79, [2009] 1 FCR 657, [2009] 1 All ER 1039, [2008] EWHC 3036 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th November 2008

1. MR JUSTICE CHARLES: This is a claim for judicial review brought by the mother of four children against a decision made by Birmingham City Council relating to payments to be made to her for both her benefit and that of the children, under provisions of the Children Act, in particular section 17, but also potentially section 20. The overall effect of the decision of the local authority is that it has concluded that, given the restrictions on its powers, which I shall return to in a moment, it will fund the costs of the return of the family to Jamaica, but will not fund continuing costs of accommodating the family, as a family, in the United Kingdom, and thus in the area for which it is responsible.
2. I pause to make the general comment, which I made during the hearing, that it is easy to understand, from the perspective of the local authority, that it comes to the matter having regard to the extent and limits upon its powers and the expenditure of its budget. It is well known to judges who sit both in this court and in the Family Division that local authorities are hard pressed, both in terms of manpower and money. It is also, I suggest, well known to judges who sit in those courts that local authorities, and indeed National Health Trusts, expend very considerable sums of money for the benefit of persons who have no lawful entitlement to be in this country. I do not know the extent of that expenditure. I suspect it is likely to be high.
3. Equally, judges who sit in those courts are fully aware of the difficulties faced by central Government, and in particular the Home Office, in respect of the enforcement of immigration policy. It is a fact that those difficulties have a considerable impact upon local authorities and their budgets, and also National Health Service Trusts, amongst others. Thus, it is very understandable that the local authority should approach matters by seeking to reach a decision which is compliant with relevant Convention rights, but has regard to the difficulties they face relating to its expenditure on the accommodation of families and the welfare of children, who have a current a lawful entitlement to be in this country and those who do not. I do not know what sums of money a local authority such as Birmingham is looking at in a situation such as that, but I would be surprised if it was not a very significant sum.
4. Further, by way of general comment, in the context of family proceedings I have had correspondence with the Home Office concerning the obtaining of the view of the Home Office as to the relevant immigration status of family members so as to best inform the court making decisions relating to the welfare of the children. The background to that is the well-known case of Re T [1994] Imm AR 368 and the decision of Munby J in Re A (Care Proceedings: Asylum Seekers) [2003] 2 FLR 921 (Fam), the underlying problem being that issues relating to immigration, and thus whether or not individuals should be removed from the country, are matters for the Secretary of State. There is the risk that considerable amounts of public money are spent in proceedings to reach a decision as to what would best promote the welfare of a particular child, only for all of that to be wasted because the decision is trumped by a decision on immigration. There is potential for similar problems in cases of this type. In that context, the parties have contacted the Home Office, in particular through a letter written by the claimant's MP, but have received a response that the Home Office will not advance this case in its queue awaiting decisions because it does not have sufficient exceptionality.
5. I was told that there are a number of cases of this type in Birmingham and, Birmingham suspect, elsewhere in the country. It seems to me that in judicial reviews relating to any similar decisions, careful consideration should be given to joining the Home Office to the proceedings in an attempt to ascertain what the view of the Secretary of State is or would or would probably be in a given case. That would reduce the risk of relevant central and local public authority decision-makers reaching different conclusions and could bring to an end expenditure of much-needed public money by local authorities in cases where that expenditure is in respect of persons who are not lawfully within this jurisdiction and who will not be given leave to remain here.
6. I turn to the chronology of events to set the background to this case and can deal with it fairly shortly. The claimant was born in April 1977 and is a citizen of Jamaica. Her oldest daughter was born in Jamaica on 22nd August 1994 and is therefore now 14. The claimant has three other children, all of whom were born in the United Kingdom. One was born in 2004 and then twins in 2006. I am told, and accept, that the father of the three youngest children is a British citizen, who appears on their birth certificates. Therefore, those children are British citizens, although at present they do not have passports.
7. The claimant and the oldest child were granted leave to come to the United Kingdom for 6 months only in December 2000. The purpose of that visit and permission was to visit her aunt. At the expiry of the 6-month period, the claimant applied for further leave to remain in the United Kingdom as a student. That application was refused in November 2001. Her subsequent appeal was dismissed in March 2003. The three youngest children were born after that date. Following the dismissal of her appeal and the termination of her appeal rights, nothing was done, as I understand it, to remove the claimant, and at that stage her oldest child only, from the jurisdiction. Thereafter, she has had the three further children.
8. She was therefore here unlawfully. Through that period she was not claiming benefits and was supported by the father of the three youngest children until 2007. At that time the claimant's position is that she and the children had to leave the home she shared with the children's father because of matters relating to domestic violence and discord. Those matters led to the children's names being placed on the child protection register for a period of time.
9. In October 2007 the claimant sent representations to the UK Border Agency asking that she and her children be granted indefinite leave to remain in the UK on the basis that the oldest child had been living here for more than 7 years.
10. After the break-up of her relationship with the children's father, who I am told is now in prison, the claimant and her children returned to live with her aunt. In March 2008 she ceased to live with her aunt. It is that loss of a home which precipitated her application to the local authority for support in this case. It is common ground between the parties that the children are to be regarded as children in need.
11. The decision of the local authority follows an assessment carried out by the local authority, which looked at and covered a number of matters and led to a decision by the relevant officer to the effect that the local authority would offer assistance by way of airfares to the claimant and her children so that they could travel to Jamaica, and it may provide a grant to assist their integration there. Further, the local authority indicated that if that offer was accepted, the current provision of accommodation and support, which was put in place pending that decision by the local authority, would be maintained so long as arrangements for the return were progressing.
12. Permission to bring these proceedings was granted by Blake J on 15th September 2008. Thus, it has come on fairly quickly after that.
13. Turning to the relevant background statutory provisions, again there is effective common ground between the parties as to what is relevant. First, section 17 of the Children Act 1989. That section imposes a general target duty to safeguard and promote the welfare of any child in need and to promote the upbringing of such children by their parent or parents. That appears in subsection (1), which provides:

"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families

By providing a range and level of services appropriate to those children's needs."

Subsection (6) provides in its amended form:

"The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash."

14. It is also common ground that section 17 of the Children Act falls within paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. That provides as follows in Schedule 3, paragraph 1, headed "Ineligibility for support":

"(1) A person to whom this paragraph applies shall not be eligible for support or assistance under...

(g) section 17, 23C, 24A or 24B of the Children Act 1989... (welfare and other powers which can be exercised in relation to adults)."

Paragraph 2(1) provides:

"Paragraph 1 does not prevent the provision of support or assistance—

(a) to a British citizen, or

(b) to a child..."

Then, importantly for the purposes of these proceedings, paragraph 3 provides:

"Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—

(a) a person's Convention rights, or

(b) a person's rights under the Community Treaties."

Then paragraph 7 which provides:

"Paragraph 1 applies to a person if—

(a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 11, and

(b) he is not an asylum-seeker."

15. Pausing there, what one has, particularly in paragraph 3 and its combination with paragraph 1, is a statutory scheme by way of provisions which prevent the exercise of powers by a local authority -- here the power under section 17 -- in certain circumstances, but provide that that bar, or prevention, is not to prevent an exercise of the power or the performance of a duty if and to the extent that its exercise or performance is necessary for avoiding a breach of a person's Convention rights.
16. This case relates to whether or not the local authority is or is not prevented from exercising its powers under section 17 in a particular way and, in particular, whether or not it is prevented from going further than it has done in providing that the family's travel costs to Jamaica should be met, because that meets the relevant Convention rights. Put another way, the question is whether or not, by exercising the power in the way that it has done, the local authority has taken a course which has the result of breaching the Convention rights of one or more members of the family. If it has so acted, the limitation on their power imposed by paragraph 3 does not exist.
17. The local authority's approach is one which says that it is limited in exercising its powers in the way that it has done so, because it is that exercise which avoids the breach of Convention rights. It is pointed out to me that it is looking at a minimum, rather than the production of a maximum, in facilitating where the family should live. I will return in a moment to the line of authority that the local authority relies on in support of this stance.
18. The claimant asserts that the local authority has failed to properly approach the question whether or not the decision that it has reached would amount to a breach of a person's Convention rights because, it is submitted, the local authority has failed to take account of the policy of the Secretary of State relating to children who have been in this country for a period of 7 years.
19. The local authority's position is that it does not have to have regard to that policy and the presumption that exists under it. The relevant policy can be seen from the decision of the Court of Appeal in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906. In that case the Court of Appeal go through the earlier cases and the history of announcements relating to that policy and refer to an earlier Court of Appeal case in R (T) v Secretary of State for the Home Department [2006] EWCA Civ 379.
20. Before going to the policy, I should refer briefly to paragraph 79 of that decision, which is as follows (and it is in the judgment of Richards LJ):

"In deciding whether the case is truly exceptional an immigration judge is entitled to have regard to statements of policy by the Secretary of State as to the exercise of his discretion to grant leave to remain outside the Immigration Rules. If a policy tells in favour of the person concerned being allowed to stay in this country, it may affect the balance under article 8(2) and provide a proper basis for a finding that the case is an exceptional one."

21. Returning to the NF case, paragraph 29 sets out an announcement made by the Under-Secretary for the Home Department, Mr O'Brien, in February 1999. Part of that reads:

"For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence."

22. The Court of Appeal in that case sought and obtained evidence from an official at the department to clarify what the policy is. The result of that appears from paragraphs 37-39 of the judgment:

"37. The Secretary of State, by Ms Dolby's affidavit, now accepts that the DP 5/96 policy does operate in terms of a presumption. She draw attention to caseworker guidance dated 11 July 2007 (entitled 'The scope of DP 5/96 (The 7 Year Child Concession)') and to training material (dated December 2006) where that presumption is referred to. For instance the following passage occurs in the former document:

'the correct approach when considering whether DP 5/96 should apply is to start from the presumption that, in the absence of any countervailing considerations, where the qualifying residence requirements are met it would be appropriate to enforce removal, but then to proceed to consider whether in all of the circumstances of the case removal remains the appropriate course of action.'

38. In sum there is no 'DP 69/99', there is only a modified DP 5/96, modified not only by the substitution of 7 years for 10 years, but also in the terms of the 1999 policy modification statement. In our draft judgment we wrote, pending clarification by the Secretary of State:

'We would, however, suggest, suggest, in line with what this court said in [T], that the Secretary of State may well be bound by Mr O'Brien's formal parliamentary answer, and that none of the other material discussed in this judgment detracts from that. Indeed, on the material before us at present we would be disposed to hold that DP 69/99 is to be found (a) in the document set out in para 25 above [ie in the policy modification statement now set out in para 29], and (b) to the extent that Mr O'Brien's parliamentary statement goes beyond that, in that statement, set out in para 26 above, by which the Secretary of State is also bound.'

The Secretary of State now accepts that (save for the reference to 'DP 69/99' as such) that provisional conclusion is correct, and that she is bound not only by the original DP 5/96, as amended to refer to 7 years, but also by the policy modification statement (see para 29 above) and, for the reasons set out in [T], also by Mr O'Brien's parliamentary answer (see para 26 above).

39. For the future it seems to us inevitable that tribunals considering the impact of the Secretary of State's policy in relation to the passing of seven years residence on the part of a child of the family should:

(1) start from the position (the presumption) that it is only in exceptional cases that indefinite leave to remain will not be given, but

(2) go on to consider the extent to which any of or a balancing of all the factors mentioned in the 1999 policy modification statement makes the case an exceptional one.

It is only in such a way that the various documents can be reconciled into a single policy."

What appears from that is that the policy is based upon the reasons set out in the T case and in the parliamentary answer given by Mr O'Brien, which also appears in paragraph 26. The extract is as follows:

"We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and

May, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits."

However, as paragraph 39 of the NF judgment indicates:

"For the future it seems to [the court] inevitable that tribunals considering the impact of the Secretary of State's policy in relation to the passing of seven years residence on the part of a child of the family should:

(1) start from the position (the presumption) that it is only in exceptional cases that indefinite leave to remain will not be given, but

(2) go on to consider the extent to which any of or a balancing of all the factors mentioned in the 1999 policy modification statement makes the case an exceptional one."

23. As is well known, Article 8 has two parts to it: firstly, the identification of the relevant private life and the second part, which incorporates the relevant balancing exercise for proportionality decisions. Article 8 provides:

"1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

24. An overarching view is now to be found in the speech of Lord Bingham in Huang v Secretary of State for the Home Department [2007] UKHL 11, which refers to whether or not the disruption would be sufficiently serious to lead to a conclusion that good or sound administration of an immigration policy should not lead to a person being removed.
25. In the context of the consideration of both parts of Article 8, I was referred by the claimant to the recent decision of the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, in particular paragraphs 35, 37 and 40-44, which I accept, as was submitted on behalf of the claimant, confirm that when considering an individual's rights under the Convention, it is also important to take into account the potential effect of removal on other family members. Therefore, when considering the claimant's rights under the Convention, the relevant decision-maker should take into account the position of the children, in particular, in this case, the oldest child, to continue to enjoy a private life in the United Kingdom, and the right of the claimant and her other children born here to continue to enjoy a family life with the oldest child, as well as a private life here. In shorthand, it seems to me that that is a decision of the House of Lords which demonstrates that the relevant decision-maker should take a family-based approach, considering the position of each relevant family member, and its impact on other family members.
26. The argument of the claimant is that, taking that approach, any decision-maker who has to determine whether or not a course of action would be in breach of the Article 8 rights of members of a family should have regard to and apply either the policy, and, to my mind more importantly, the underlying reasons for the policy announced by the Secretary of State and confirmed and identified in the decision in NF.
27. At the heart of the challenge to the decision is that the local authority, as the decision-maker here, in determining whether or not the effect of its decision is to breach the Convention rights, namely the Article 8 rights, of members of the family, should have had regard to that underlying reasoning. It is correctly common ground that the thorough investigation carried out by the local authority did not take that approach, and did not take that approach because, in the view of the local authority, for essentially the reasons argued before me, as a matter of law it did not have to take that approach.
28. I therefore turn to consider that argument. It is essentially based on a decision in R (Grant) v Lambeth London Borough Council [2005] 1 WLR 1781. That case is to be read with, in providing the detail of the argument, other cases. In this context, I was referred to R (Blackburn-Smith) v London Borough of Lambeth [2007] EWHC 767 (Admin), a first instance decision, again concerning a claimant from Jamaica, in which Dobbs J concluded that the local authority could lawfully discharge its obligations to the claimant by offering to pay for her and her children to return to Jamaica, because by doing so they were acting in a way, in that case, which did not result in a breach of Convention rights.
29. Also in this context, I was referred to R (Ireneschild) v Lambeth London Borough Council [2007] All ER (D) 286, to R (Kimani) v Lambeth London Borough Council [2004] 1 WLR 272 and to R v Secretary of State for Social Security, ex parte the Joint Council for the Welfare of Immigrants [1997] 1 WLR 275.
30. Before turning to those authorities, it seems to me important to go back to consider the relevant provisions, in particular the qualification, in paragraph 3 of Schedule 3, concerning the limitation of the exercise by local authorities of their powers. To my mind that is important for this reason: in the context of that provision, in my judgment, it is apparent that the decision-maker, as to whether or not what is being done or is proposed would amount to a breach of Convention rights, is the local authority. That much is common ground, and to my mind is supported by the authorities upon which the local authority relies.
31. It also seems to me important, looking at the provision, to consider what that decision-maker has to decide. As to that, it seems to me that what that decision-maker has to consider, and decide, is whether or not what is proposed would breach somebody's Convention rights. If it would, then the restriction on its powers does not apply and the local authority could make additional expenditure within the provisions of paragraph 3.
32. It was pointed out to me, as a matter of language, that that exception to the restriction is limited in the language by the use of the phrase "to the extent that". I, for my part, would add the words "is necessary for the purpose of", but in the context of Article 8 rights, it is not, to my mind, so easy to see why there is not, for this purpose, a bright line decision. In the context of other rights, such as Article 3, one could well imagine that further expenditure may go well beyond what is required simply to get over the threshold to avoid a breach. I can accept that that may also occur in the context of Article 8 rights, but when the decision is as to whether or not the family should be required to leave the jurisdiction, I find it more difficult to see where that limitation comes into play. But that point has not been at the heart of the argument, because it is accepted that if the primary submission made on behalf of the claimant is correct, that is not a course which the local authority has followed, and it became common ground before me that if the claimant's primary point is correct, then the matter will have to be remitted to the local authority for further decision.
33. Particular reliance is, understandably, placed upon the decision in Grant by the local authority. I was referred in particular to paragraphs 27 and 28 and the citations made in that paragraph to support the proposition that respect for family life does not require that the claimant should remain in this country while an appeal or application is considered, and for the proposition that neither Article 3 nor Article 8 imposes a duty on the state to provide a claimant with support. I was taken to paragraph 29, largely for the citations contained in it, to the effect that Article 8 creates no right to enjoy family life in one country rather than another.
34. Of particular importance to the local authority's argument is the conclusion contained in paragraph 31 of the judgment of Kennedy LJ where he says:

"In my judgment, for the reasons I have given when dealing with the submissions made by Mr Knafler, the submissions made by Mr Béar on behalf of Lambeth are correct, and I would therefore allow this appeal, set aside the judgment of the judge and dismiss the claim for relief. It is to my mind important to recognise from the outset, and not to lose sight of, the fact that the claimant and her two elder children are illegally here, and have no right to be accommodated. The claimant cannot create such a right by making an application for leave to remain, or by appealing against a decision which has gone against her. On the other hand Lambeth, which has provided her with accommodation thus far, cannot act in such a way as to interfere with her Convention rights. The offer it has made seems to me to safeguard those rights. At present, in my judgment, it need do no more."

35. I was also referred to paragraph 50 in the judgment of Chadwick LJ, where he says:

"To my mind there is no reason why, in considering how best to avoid a breach of the Convention rights of Mrs Grant and her children in the circumstances of this case, the council should not decide to use the powers conferred by section 2 of the 2000 Act and the power conferred by regulation 3(3) of the Withholding Regulations, in conjunction with each other, to the extent that it considers it necessary to do so in order to achieve that object."

36. Returning to the conclusion in paragraph 31, in my judgment the sentence that the claimant cannot create such a right by making an application is referring to a right to be accommodated, not to the creation of a Convention right. I respectfully agree and am indeed bound by the point that there is no right created by the Convention to be so accommodated.
37. Equally, it seems to me that the next sentence is a recognition by Kennedy LJ of the position a local authority, namely that it cannot act in such a way as to interfere with Convention rights, in the context of this case: the local authority cannot act in such a way as to interfere with the family's Article 8 rights. Inherent in that, and all of the judgments I have referred to, is the point that the local authority, as the decision-maker, must consider whether or not its proposed course of action is one which will result in it acting in a way that interferes with the relevant Article 8 rights. That is apparent from the next sentence in paragraph 31, where Kennedy LJ considers that position and says there:

"The offer it has made seems to me to safeguard those rights."

38. Although I accept that the authorities relied on by the local authority do provide support for the position that a local authority can reach its own decisions, pending decisions by the Secretary of State on immigration, what I do not accept is that it means that a local authority can essentially ignore the underlying issues relating to whether or not Convention rights would be interfered with as a result of a decision reached by the local authority. Indeed, the local authority was not so asserting, because it was asserting that in this case it was for it to make a decision as to whether or not the Article 8 rights of the claimant and her family were breached or interfered with as a result of its decision. In that context, it is said that it is incumbent upon the local authority to reach a fact-sensitive decision in each and every case. That could result in a case in which a family has been here for only a short time being recognised as having Article 8 rights, which would be breached by a course of action which would compel them to leave the jurisdiction. I accept that point, and, as I understand it, the claimant does too, but to my mind that does not address the underlying problem.
39. The underlying problem, as I see it, is this: the Secretary of State and Government department primarily responsible for immigration policy have indicated that they will apply a presumption in the case of children who have been here for more than 7 years, and thus by definition, as I see it, children who are not lawfully here and whose parent is not lawfully here.
40. Another aspect of immigration policy is demonstrated by the provisions of Schedule 3 of the 2002 Act, and that is, as is well-established in the cases, to restrict the expenditure of public moneys on persons who are unlawfully here so as to discourage them from coming here and remaining here. It is that which underlies the restriction imposed upon the powers of the local authority and the point which the local authority pray in aid to save expenditure of its budget, in this case by accommodating this family.
41. It is not only the local authority who can be a decision-maker in respect of Convention rights. As the authorities I have referred to demonstrate, tribunals have to consider such matters, as do the courts. To my mind, at the heart of the problems faced by the local authority is the point that their stance leads to a conclusion that, when considering the issue that it is required to consider, namely whether the course of action it proposes would be a breach of Convention rights, it can take a different course or approach to the one which would be taken by the Secretary of State in determining whether or not the family have Article 8 rights and, given those rights, it would be disproportionate in all the circumstances to remove them from the country.
42. Equally, one can look at that in the context of whether a court, in determining Article 8 rights, can ignore a presumption relating to them that is applied by the Secretary of State, and thus the person who is primarily responsible for implementing immigration policy. To my mind, the court could not do so, not because it is bound by the policy -- I accept that the local authority is not bound by the policy, as, for example, is indicated by the point that it is not bound by the policy of the Secretary of State not to set removal directions when an appeal is pending. The authorities demonstrate that, in particular the decision in Grant demonstrates that through that period the local authority can make a decision which would have that effect. Rather, to my mind, any decision-maker, whether it be the local authority or the court, has to have regard, when considering the balance at the second part of Article 8, to the reasons underlying the presumption and approach taken by the Secretary of State, which have been explained and set out by the Court of Appeal in the NF decision by reference to what Government had said. That is not being bound by the policy that creates and applies the presumption; it is having regard to the reasons which underlie that policy. Absent such an approach, there would be a lack of consistency in decision-making by public authorities as to the relevant central point: namely, has there been a breach of Convention rights in respect of a family who have a child or children who have been here for 7 years?
43. It is urged upon me, and I accept, that the local authority must decide cases having regard to the facts of that case. It is said that the application of a policy or presumption flies in the face of that, because by definition the policy or presumption has arbitrary aspects to it. For example, 8 years could have been chosen or 12 years could have been chosen. To my mind, again that misses the point, because what the decision-maker has to have regard to is the reasons which underlie that policy and presumption, namely the point that the ties created by the child will generally lead to a conclusion on the balancing act that removal from the country would amount to a breach of Article 8 rights. I therefore do not accept the arguments advanced on behalf of the defendant local authority that it is entitled, as it accepts is the course that it took, to leave out from its decision-making process the factors underlying the 7 years policy and presumption.
44. In this context, I acknowledge that the assessment refers clearly to the fact that the oldest child has been here for 7 years, but it is common ground, because of the advice received by the decision-maker, that the decision-maker did not go on to consider the impact of the reasons which underlie the 7 years policy and the presumption it gives rise to.
45. It is then said that the balancing act with which the Secretary of State would be engaged is very different from the balancing act which the local authority is engaged at the second stage of Article 8. In that context, I was referred to paragraph 79 in T as to the potential impact for a policy on sound immigration policy, whereas it is said that the local authority is not concerned with sound immigration policy but as to the administration of its funds and the advantages which flow to others, for whom it is responsible, of applying the restriction included within Schedule 3.
46. This aspect of the argument was employed in two respects. The first respect was as to the first point, that the local authority does not have to have regard to the reasons underlying the 7 years policy. I have dealt with that. The second point, which was not argued as fully before me, is whether there is an argument available to the local authority that in the balancing exercise under Article 8 it is entitled to take into account different considerations to the Secretary of State and/or considerations over and above those which the Secretary of State takes into account, and thus the proper application of the resources of the local authority.
47. The existence of that argument, to my mind, means that the court should refer the matter back to the local authority, because if it wishes to argue that line, it needs to be particularised and supported by relevance to the relevant background factual information, which is not the case in the present determination.
48. A problem with the argument is that the determination required by paragraph 3 of Schedule 3 is not one as to the allocation of moneys, but as to whether or not what is proposed would amount to a breach of Convention rights. It is therefore only concerned with the allocation of moneys in the limited sense that the relevant provisions lead to a conclusion that the local authority only have to and can only expend moneys to the extent that the relevant line is crossed to avoid a breach of Convention rights.
49. I say no more about that aspect of the case at this stage, and the views just expressed are necessarily preliminary views. To my mind, the claimant has made good the argument that the local authority has erred in law in failing to take account of the reasons which underlie the 7 years policy, as explained in NF. Therefore this application succeeds and I will set aside the decision of the local authority on the basis that it needs to reconsider its position.
50. As will be apparent from the opening remarks I made in this judgment, it seems to me that if that reconsideration leads to further proceedings, careful consideration should be given to joining the Home Office in those proceedings, not least to obtain its views in this case, but also to seek to establish a regime in which decisions relating to the expenditure of public moneys by local authorities can be properly informed by the attitude taken by the Government department responsible, or primarily responsible, for immigration matters.
51. A problem in this case would be that if the local authority's decision was to stand, and thereafter the mother was able to remain here by some method, whether or not the children were accommodated, and a later decision is made by the Home Office that the family should be given permanent leave to remain, that would be a demonstration that their removal now would be in breach of their Article 8 rights. The family, with indefinite leave to remain, would then be able to access benefits and different issues would arise for consideration. The divergence, or the potential for divergence, between decision-makers on matters central to the question of whether a family's Article 8 rights are being, or would be, breached, in my view, should be kept to a minimum. Thus, it seems to me that the Home Office should either be joined or by other means encouraged to express a view on the underlying issue in this and similar cases.
52. I will allow this application for review in the manner I have indicated.
53. MRS FINCH: I am obliged, my Lord. Blake J did make a costs order last time. So I ask for costs from the permission hearing.
54. MR JUSTICE CHARLES: What order did he make?
55. MRS FINCH: He did not allow us the costs of the permission hearing, because our skeleton argument did not reflect the original grounds due to the speed with which I had to change --
56. MR JUSTICE CHARLES: You are publicly funded?
57. MRS FINCH: Yes.
58. MR JUSTICE CHARLES: What is your position on that?
59. MR COWEN: My Lord, dealing with the easier point, that is right. I was there at the hearing. There is no issue that Blake J made no order for costs up to and including the permission hearing. So it is the question of the costs from the permission hearing. I would ask that you make no order for costs again, because this is an issue of public importance and local authorities really have to seek the guidance of the court as to what the appropriate course of action is. There are two lots of public funds. It is not going to achieve anything by sending one lot to another lot. So I would ask you to make no order for costs.
60. MR JUSTICE CHARLES: What is your position on that?
61. MRS FINCH: I think the claimant would be more sympathetic if the local authority had tried to address some of the points raised at the permission between the permission and now, but there has been no attempt to look at some of the issues raised by Blake J. So I would seek a costs order.
62. MR JUSTICE CHARLES: Is his order in the bundle?
63. MR COWEN: Yes.
64. MR JUSTICE CHARLES: I am thinking more of the matters he raised.
65. MRS FINCH: He did not actually say what he raises.
66. MR JUSTICE CHARLES: He would not in the order, no.
67. MRS FINCH: But he raised this issue. I think my learned friend would agree that this was the issue that he raised.
68. MR JUSTICE CHARLES: Yes, he told me that.
69. MR COWEN: What he said was that the issue was whether the local authority was bound by the policy. He raised the issue, but he did not in any way say anything -- my friend and I were both there -- at all to try and encourage the local authority to change its position or its decision-making process at that time. My Lord, as I have indicated, this is one of a number of cases. If we changed it in this case, we would have to change it in all the other cases. So it had wide-ranging financial implications, and still does so. He certainly did not do any more than refine the question that would be answered at the final hearing.
70. MR JUSTICE CHARLES: The norm would be that you would have to pay the costs. That is the difficulty.
71. MR COWEN: That would be the norm, but your Lordship has a discretion. In my submission, because this case has implications for a number of cases, the correct order would be to make no order in respect of the costs of and occasioned by the application since the permission hearing, because, as I have indicated, issues arose which needed to be aired which had implications for a number of cases.
72. MR JUSTICE CHARLES: Do want to come back on that?
73. MRS FINCH: The Birmingham Law Centre always has a number of cases that directly involve the same defendants. We are talking about a fairly small organisation, which has done a lot of work on this case.
74. MR JUSTICE CHARLES: Which organisation are we talking about?
75. MRS FINCH: Birmingham Law Centre.
76. MR JUSTICE CHARLES: They are funded, are they not, by the Legal Services Commission?
77. MRS FINCH: They are funded in the same way as private practices. I believe law centres are funded that way, my Lord.
78. MR JUSTICE CHARLES: So you would have a legal aid assessment, in any event?
79. MRS FINCH: I do not have any further instructions on whether they get enhanced fees if there was a costs order made.
80. MR JUSTICE CHARLES: I think the answer is they do not.
81. MRS FINCH: Yes. It would be usual practice to have a costs order.
82. MR JUSTICE CHARLES: I now deal with the issue as to costs, the normal order would be that the plaintiff, having succeeded, should have an order for costs. The point that troubles me in this case is that underlying the position of the local authority are the points I have referred to as the burdens placed upon local authorities by reference to failures, for whatever reason, to remove people who are not lawfully here from this country. However, that has little or nothing to do with the claimant in this case, albeit that she has taken advantage of that fact. But I cannot impose costs upon the public budget, of the Home Office, on the basis that part of the underlying problem is the interrelationship between the performance of its functions and the performance, by a local authority, of its functions. Rather, the debate between public budgets is between the Law Commission and the local authority. Therefore, in my view the normal order should follow and the applicant should have her costs, to be assessed if not agreed, and will also have an appropriate legal aid fund assessment. That is the costs since permission hearing.
83. MR COWEN: Yes, my Lord.
84. Can I deal with one or two other matters. First of all, can I ask for permission to appeal on the basis that it raises an important point that is in issue, for the reasons I have indicated in my submissions.
85. MR JUSTICE CHARLES: You can go to the Court of Appeal to ask for permission to appeal. I do not think this does raise a particularly important point. I think it raises a point simply on the application of Schedule 3 and what you have to take into account as being a decision-maker.
86. MR COWEN: My Lord, yes. We normally have 21 days to appeal. Your Lordship can extend it. It would assist us in considering carefully what we want to do now if you can extend it by a modest 7 days.
87. MR JUSTICE CHARLES: I can certainly do that.
88. MR COWEN: I am grateful.
89. MR JUSTICE CHARLES: Do you have a problem with that?
90. MRS FINCH: No.
91. MR COWEN: So that is, any application to renew the application for permission to the Court of Appeal is extended to 28 days from today.
92. The next point is the transcript of the judgment. I was a little bit confused as to what happens here. I would ask for an expedited transcript, and I would ask that it is at public expense, to ensure we can get it quickly so we can consider our position. Clearly, aside from anything else, even if we do not seek to appeal, the decision has implications for other decisions of this local authority and decisions of other local authorities: a number of decisions. So in my submission it is important that the transcript is available for everyone to look at, and as quickly as possible. So I make that application.
93. I pass on to everything at once at once. The next point, it is just a procedural point, I raise it before your Lordship, is the order is very simple. I assume it will be drawn up immediately. If we do seek to bring an application, we will need to seal the order as quickly as possible. As I understand it, it is going to be a simple order that presumably your associate will draw up.
94. MR JUSTICE CHARLES: It will be an order: application allowed, costs since permission to be paid and time for appealing extended to 28 days.
95. MR COWEN: They get their usual order for detailed assessment of their publicly funded costs.
96. MR JUSTICE CHARLES: Yes.
97. MR COWEN: So that can be done quite quickly.
98. Then it is just the question of the transcript. Although we have to make a fresh decision, once these proceedings end today, it will be that any orders made in these go, but we, for the avoidance of doubt, confirm -- I have told my friend this -- that we will continue to support the claimant and her children, subject to at least 14 days' notice of any decision to withdraw. That is 14 days' notice to her client and her solicitors. So if we reach a fresh decision which is, we consider, lawfully (inaudible) withdrawn, we will not spring it upon anyone with less than 14 days' notice.
99. MR JUSTICE CHARLES: Yes, I think your likelihood of not being at the wrong end of interim relief if you do not continue it if there is an active judicial review are not high, but I take the point that you can do that.
100. MR COWEN: So my Lord, it is just the transcript point. I would ask that we have an expedited transcript.
101. MR JUSTICE CHARLES: You can certainly have an expedited transcript. I do not impose expedition on myself terribly strictly in that, because I have to correct it. I am just wondering whether your time for appealing should actually be geared to a time after receipt of the transcript, because it is not so easy to make your decision in the context of notes of a judgment given in that form --
102. MR COWEN: That would be helpful.
103. MR JUSTICE CHARLES: -- to enable the parties to consider it, both as to where I have gone wrong, allegedly, and more generally. Do you have any point on that?
104. MRS FINCH: My Lord, no. That is a sensible provision to make.
105. MR JUSTICE CHARLES: I will expedite the transcript. It is the bit about public expense I am more troubled about. I will say that your time for appealing is to be 21 days from receipt of the transcript, because you can be thinking about it in general terms whilst you await it, but I can see that you need to dot your i's and cross you t's in the light of the transcript.
106. MR COWEN: The transcript as approved by your Lordship?
107. MR JUSTICE CHARLES: Approved by me, yes.
108. MR COWEN: Sometimes judges go away, so I am grateful for that.
109. MR JUSTICE CHARLES: I think it is sensible, because then you can either decide it is entirely right and/or you can point precisely as to where you say it was wrong.
110. MR COWEN: Yes, so 21 days from receipt of transcript. So your Lordship orders the expedited transcript?
111. MR JUSTICE CHARLES: Yes. I do not understand why it would be at public expense. It means the Court Service pays for it.
112. MR COWEN: I do not know what happens otherwise.
113. MR JUSTICE CHARLES: The answer is, you pay for it. The parties pay for it, if they want it, is what it comes to.
114. MR COWEN: The honest answer is, we do want it.
115. MR JUSTICE CHARLES: I will expedite it. I do not think it is a case for a transcript at public expense. I think you will have to pay for it when it arrives. It is not very expensive. I will order a expedited transcript and I will say that your time for appealing is to be 21 days from your receipt of the approved transcript. You will get that by paying the relevant court reporters to get the document. So you will know when you get it.
116. MR COWEN: I am grateful, my Lord, thank you.