Facts: Ms Clue was a Jamaican national who had unlawfully overstayed her leave to enter the UK, but who had an outstanding application for LTR with the Secretary of State for the Home Department, based on the long residence of her children. Having become destitute, she applied to Birmingham for support under section 17 of the Children Act 1989. Birmingham declined to provide any support, except such as would enable the family to return to Jamaica.

Judgment: the Court of Appeal (Dyson and Etherton LJJ, Sir Scott Baker) allowed Ms Clue’s application for judicial review:

1) When enacting Schedule 3 to the 2002 Act, Parliament cannot reasonably have intended to confer a general power on local authorities to pre-empt the determination by the Secretary of State of applications for leave to remain. Save in hopeless or abusive cases, the duty imposed on local authorities to act so as to avoid a breach of an applicant’s Convention rights does not require or entitle them to decide how the Secretary of State will determine an application for leave to remain or, in effect, determine such an application themselves by making it impossible for an applicant to pursue it.

2) There was no material before the court to suggest that the Secretary of State routinely exercises his discretion to determine an application for leave to remain notwithstanding that the applicant has left the UK. Accordingly, local authorities should approach their task on the footing that if, by withholding assistance, they require a person to return to his country of origin, that person’s application for leave to remain will be treated by the Secretary of State as withdrawn.

3) Therefore when applying Schedule 3, a local authority should not consider the merits of an outstanding application for leave to remain. It is required to be satisfied that the application is not ‘obviously hopeless or abusive’.

4) In circumstances where a person has made an application to the Secretary of State for leave to remain that raises Convention grounds and has made an application for assistance to the local authority that falls to be considered under Schedule 3 to the 2002 Act, the financial situation of the local authority is irrelevant when applying Article 8(2). The disposal of applications for leave should not depend on the vagaries of the budgetary considerations of local authorities.

5) Even if it had been legitimate for Birmingham to disregard the application for leave to remain and it had been entitled to decide for itself whether the withholding of assistance would breach the Convention rights of the claimant and her family, its assessment was nevertheless unlawful. The whole emphasis of the assessment was on the issue of respect for family life. There was no recognition that a return to Jamaica would interfere with the family’s right to private life (their relationships and social, cultural and family ties in the UK) or that they understood that the private life rights of children who were born in the UK or came here at an early age were of particular weight.

6) The facts of the case exposed the problem created for local authorities by delays on the part of UKBA in dealing with applications for leave to remain by persons in the position of the claimant and her family. The Secretary of State had agreed to take steps to mitigate these problems, namely to prioritise consideration of cases involving applicants supported by local authorities in the same way as those of applicants supported by the Secretary of State and to review decision-making processes having regard to the need to safeguard and promote the welfare of children.