Are you working with young people who are/at risk of becoming appeals rights exhausted? Have you been asked to undertake a Human Rights Assessment for a former relevant asylum seeking young person? If so, this judgement may be useful for you…
This case looks at the local authority duties towards former relevant young people who have no immigration permission to be in the UK, specifically referring to a young person who was 21 and appeals rights exhausted (ARE)
The London Borough of Croydon (LBC) were supporting a care experienced young person who had turned 21 but had exhausted his appeal rights on his asylum claim.
They completed a Human Rights Assessment concluding that he was no longer entitled to support from the local authority as he had chosen not to engage in voluntary return.
The young person challenged the local authority, arguing that it had not properly considered any breaches to his Human Rights under the European Court of Human Rights.
The judge was looking at two key issues on this case;
Additionally, the court also looked at whether a local authority could refer a young person to Section 4 Home Office support to avoid destitution.
The judge provided some useful starting points on addressing both issues which have been summarised here.
In my view, the London Borough of Croydon had failed to explore/undertake an assessment of whether removal of support would have breached his rights (caveat – I have not seen the assessment and have only read what was referenced in the judgement). They appear to have concluded that removal of support was lawful because the young person could freely return to his country of origin, but had chosen not to, therefore rendering himself destitute through choice. However, it appears as though they did not consider any other breaches to his rights, including his right to education.
The judge agreed that withdrawing services that resulted in someone becoming destitute (when they were able to freely return) would not be unlawful under immigration legislation, however “where there was a need based on two purposes, which included the avoidance of destitution, then the local authority duty to provide assistance remained intact”
The London Borough of Croydon argued that the right to education is not an absolute right, and the state has the power to interfere with this right under certain circumstances. The judge examined whether any interference in someone’s right to education would be justified, and if so, what would be proportionate.
The judge found that to establish whether breaching the right to education was proportionate, the local authority would need to undertake a “balancing exercise”. Although the judge does not comment on what a balancing exercise should look like, they went on to say;
“Precisely the kind of evidence that the court would need to reach a fair, reasonable and safe conclusion about whether the interference with a person’s convention right is necessary and proportionate is missing. I know nothing about the other demands on the many ratepayers of Croydon. There has been no balancing exercise or assessment of the competing claims on the funds by the claimant and any other competing person or group of people”
The judge is acknowledging here that withdrawing accommodation and support, that would realistically mean someone was unable to meaningfully engage in education, may be proportionate but the local authority would have to evidence why.
On Section 4 support, the LBC conceded that they were unable to refer a young person onto this service as any threshold for meeting Section 4 support, would also trigger the local authorities’ duties to support.
Such central support is a “residual” solution, and not available if the relevant local authority on the ground has the power to assist.
I’m aware that the case law around Human Rights Assessments can be difficult to navigate, if you’d like further training on this, please don’t hesitate to get in touch.
