Facts: the claimants were failed asylum-seekers who were unlawfully present in the UK but had made fresh representations and may have been eligible for residential accommodation under section 21 of the National Assistance Act 1948.

Judgment: Lloyd Jones J held that:

1) A failed asylum-seeker who was in the UK in breach of immigration laws within the meaning of section 11 of the 2002 Act was, by virtue of para 7 of Schedule 3, ineligible for the support or assistance identified in para 1 of Schedule 3, subject to the exceptions in paras 2 and 3 of Schedule 3. There was nothing in the scheme or language of Schedule 3 to support the view that para 6 was intended to make exclusive provision for failed asylum-seekers to the exclusion of other categories of ineligibility. It was the intention of Parliament, as a matter of policy, to distinguish between failed asylum-seekers who were in the UK in breach of immigration laws within para 7 of Schedule 3 and those who were not and to make more generous provision for the latter category.

2) If in the case of a failed asylum-seeker who satisfied the criteria for section 21(1) and (1A) of the National Assistance Act 1948 the provision of support were necessary for the purpose of avoiding a breach of Convention rights within the meaning of para 3 of Schedule 3 to the 2002 Act, that provision was to be made by a local authority pursuant to section 21 of the 1948 Act rather than by the Secretary of State pursuant to section 4 of the Immigration and Asylum Act 1999 (‘hard cases support’).

3) If the Article 3 ECHR threshold were otherwise met, the making of a purported fresh claim on UN Convention on Refugees/Article 3 ECHR grounds by a failed asylum-seeker did not always make it necessary for support to be provided in order to avoid a breach of Convention rights, under Schedule 3 para 3 to the 2002 Act, pending a decision by the Secretary of State on the representations. It would be necessary for the relevant public body to have regard to all the circumstances including, where appropriate, the matters which were alleged to constitute a fresh claim. It was necessary to proceed on a case-by-case basis. However, it was only in the clearest cases that it would be appropriate for the public body concerned to refuse relief on the basis of the manifest inadequacy of the purported fresh grounds. Where appropriate the individual would have recourse to judicial review to challenge such a decision.

Comment: see the Court of Appeal decision below, affirming the Judge’s conclusion as to the division of responsibility between Croydon and the Secretary of State for the Home Department.