21.29R (K) v Lambeth LBC [2003] EWCA Civ 1150, (2003) 6 CCLR 484
It was not a breach of Article 8 ECHR to offer only travel assistance to leave the UK to a family who could reasonably be expected to leave the UK
Facts: Ms K was a Kenyan citizen whose marriage to an Irish national had been determined by the Secretary of State for the Home Department to be a marriage of convenience. Ms K’s appeal against that decision was pending but she was precluded meanwhile from mainstream benefits and sought assistance from Lambeth under section 17 of the Children Act 1989, for herself and her young child. Lambeth took the view that Ms K was excluded from eligibility by Schedule 3 to the Nationality, Immigration and Asylum Act 2002 and that it was unnecessary to provide her with support, to avoid a breach of ECHR rights.
Judgment: the Court of Appeal (Lord Phillips MR, Judge and Kay LJJ) held that it was unnecessary, for the purpose of respecting the family or private life of Ms K and her child, for them to remain in the UK pending her appeal: Ms K and her husband had already separated (and the child was not his) whereas Ms K could pursue her appeal from Kenya without real difficulty:
49. No authority has been placed before us which bears directly on the issue we have to resolve. We must decide it as a matter of principle. We do not consider that either Article 3 or Article 8 imposes a duty on the State to provide the appellant with support. She has not been granted leave to enter or remain in this country. She has been permitted to remain here to pursue an appeal in which she advances, inter alia, an Article 8 claim, which we consider to be clearly specious. Even if it were not, no infringement of Article 8 would result from requiring her to return to her own country pending the determination of her appeal. There is no impediment to her returning to her own country. A State owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home. Most people who fall into this category are given leave to enter on condition that they do not have recourse to public funds.