Clue: two years on from the landmark Court of Appeal judgement.
Despite the Court of Appeal judgement in Birmingham City Council v Clue bringing clarity to the issue of when a local authority has a duty to provide accommodation to destitute children whose parent’s immigration status is not settled, social workers and Children’s Services managers continue to use the threat of removing children from families to avoid providing services under section 17 of the Children Act 1989.
It has now been two years since judgement was handed down but it remains a significant decision and one which has had a positive impact on the children of many undocumented migrants across the UK. However, we continue to hear from clients who have been advised by social workers that, in spite of the decision in Clue that separating the children from their mother would be unlawful, they can only provide accommodation for their child. Clients come to us at the Law Centre and tell us that they are frightened to continue talking to social services because they don’t want their children taken from them. Many social workers appear to have been told that, ‘section 17 is just a very small fund that we can’t really apply for’.
Colleagues at ASIRT, a charity providing advocacy support to people subject to immigration control, report examples such as that of a single mother of a ten year old daughter, herself resident in the UK since the age of 15, approaching the Local Authority for help only to be told that nothing, other than the provision of section 20 foster care support for her daughter, could be made available. Dave Stamp, Manager at ASIRT, told us that:
‘this refusal of support has left the service user with an ever-spiralling debt problem and considerable emotional distress. Birmingham City Council steadfastly refuses the presence of advocates during assessment processes, further weighing the balance of power against the impoverished and frequently traumatised client.’
In 2008 Birmingham Law Centre successfully challenged Birmingham City Council in the High Court over their decision to refuse to provide support to Ms Clue and her children. Birmingham Law Centre’s, Yasmeen Qazi, began to defend the subsequent appeal brought by Birmingham. Public Law Solicitors then took conduct of the case and steered it successfully through the Court of Appeal. Ms Clue was represented by Stephen Knaffler QC and Nadine Finch of Garden Court Chambers.
Ms Clue had arrived in the UK from Jamaica in 2000 and, in 2008, applied to the Home Office for leave to remain on the basis that her eldest child had been in the UK for more than 7 years. At that time, the Home Office was still operating the ‘seven year rule’, a concession within the immigration rules allowing applications for leave to remain for those with children who had lived in the UK for 7 years or more, and which was effectively re-introduced by the judgement EM and Others (Returnees) Zimbabwe CG  UKUT 98 (IAC). Birmingham refused to provide support and accommodation under Section 17 of the Children Act 1989 on the grounds that the family could return to Jamaica. They had ignored the fact that Ms Clue and her children had established an Article 8 private life in the UK and that it would therefore be a breach of their ECHR rights to force them to return. The Court held that it was not acceptable to use an Article 8(2) qualification, ‘by reference to the even more pressing claims of others on the budget’.
The case turned on whether it was right for Birmingham to assess the merits of Ms Clue’s application for leave or whether this should be left to the Home Office. The Court of Appeal held that it was not the local authority’s decision to make unless the application was clearly hopeless or abusive. Dyson LJ also held that the financial circumstances of the local authority should have no bearing on the outcome of the application:
It [would be] unfair and arbitrary if the outcome of a person’s application for leave to remain depends on the budgetary priorities of the particular local authority to which the claim for assistance is made.
Let us also not forget that, but for the potential breach of Ms Clue’s rights under the European Convention on Human Rights, she would have been caught by the pernicious effect of section 54 and schedule 3 of the Nationality, Immigration and Asylum Act 2002. This piece of legislation outlined provisions for support to be withdrawn or withheld from certain classes of migrant, including refused asylum seekers and persons, like Ms Clue, unlawfully in the UK.
The impact of this decision has been felt across the country and by countless families faced with destitution and nowhere else to turn. For the last two years we have continued to help families in similar circumstances to Ms Clue and her children to access services from the local authority. Unfortunately, just at the point when children find themselves in the greatest need, local authorities in the Midlands have attempted to ignore the pleas for help until reminded of their responsibilities under the Clue Judgement.